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Full text of "Trial of John H. Surratt in the Criminal Court for the District of Columbia, Hon. George P. Fisher presiding"

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OF 


JOHN    H.    SURRATT 


IN 


THE    CRIMINAL   COURT 


FOR 


THE     DISTKICT    OF    COLUMBIA, 


Hon.   GEORGE    P.   FISHER,   Presiding. 


"\rOXi.    I. 


WASHINGTON: 

FRENCH    &    IlICHARDSON. 

PHILADELPHIA: 

J.   B.    LIPPINOOTT   &   CO. 
1867. 


TRI^L 


JOHN    H.    SURRATT 


THE  CRIMINAL  COURT 


FOR 


THE   DISTRICT    OF   COLUMBIA, 


Hon.  6E0B6E  P.  FISHEB  Fresiding. 


YOIiUME     I. 


WASHINGTON: 

OOYERNMEKT    PRINTING    OFFICE. 
1867. 


INDEX  TO  VOL.  I. 


Government  tintne9$e$. 


Page. 

Barnes,  General  J.  K 121, 122 

Blinn,  C.  H i, 174 

BeU,  W.  H 247,  252 

Benson,  Mrs.  M 352 

Bunker,  G.  W 329 

Baker,  L.B 315 

Barton.  Greorge  D 484 

Bates,  D.  H 506,514 

Branson,  Mrs.  Mary 523 

Conger,  Colonel  E.  J 305 

Cooper,B.H 183 

Canipbell.R.A 192 

Conger,  William  R 357 

Chester,  S.  K 324 

Cleaver,  William  E 204 

Cbapin,  George  F 236 

Coleman,  W.  H 520 

Cashing,  George  W.,  jr 523 

Dje,  Sergeanf  S.  M 131 

Dawson,  Charles 337 

Dunn,  Charles  C 436 

Ferguson,  J.  M 129 

lletcher,  J 228 

Fitzpatrick,  Miss  H 232 

Gifford,  J.  J 326 

Grillo,S 176 

Green  wait,  J 271 

Graut,  General  U.  S 336 

Garrett,  J.  W 302 

Gooding,  D.S ...  489 

Hohart,  C 169 

Healon,  F.  M 500 

iiall,  Frederick  H 527 

Jackson,  Snsan  Ann 162 

K«it,W.T 123 

Kaldenbacb,  A 517 

Koontz,  George  S 524 


Page. 

Lee,  John 195 

Lloyd,  J.  M 276,289 

Lincoln,  Thomas  525 

Morgan,  R.  C 340 

Maddox.J.L 259 

McDonongh,  H.  R 356 

Martin,  M.  E 213 

McGlermont,  Mrs.  E.  W 365 

May,Dr.  J.T  270 

Marray,Mr8.M 246 

McMillan,  Lewis  J.  A 461,  493 

Norton,  William 510 

01in,JudgeA.B 420 

Petit,  J.W 351 

Pettit,  J.B 127 

Pile8,J.V 265 

Pumphrey,J.W 225 

Robinson,  George  T 260 

Rathbone,  Colonel  H.  R 124 

Reed,D.C 150 

Rainey,S.A 203 

Ramsell,  Charles 498 

Rhodes,  T  B   501 

Stewart,  ColonelJ.  B 125 

Sawles,  A 366 

Sangster,  J 166 

Sprague,  L.  S 323 

Smoot,  E.  L   190,218 

Sawles,  E.A 362 

Stabler,  Brooke 216,  220 

Smith,  Colonel  H.  W 321 

Seward.  Hon.  F.W 249 

Seward,  Mrs.  F.  W  252 

Seward,  Colonel  A.  H 254 

St.  Marie,  H.  B 492 

Toffey,J.J 231 

Tibbett,J.T 17» 


II 


INDEX. 


'Page. 

Taltavul,P 157 

Townsend,  General  E.  D 287 

Thompson,  W.  S 510-517 

Thompson,  J.  C 515 

Vanderpool,  B.  W 240 


Page. 

Wright,  J.  M 122,  192 

Weichman,  L.  J 369-437 

Wheeler,  William  E 314 

Wermerskircb,  W.  M 485 

Walker,  James 489 

Wood,  Charles  H.  M 494 


Defendanfs  witnesses. 


Bradley,  opening  address 530 

Boss,  William .,.  593 

xNtueS,  Urn  XI  ••••■  ••••«•  ■«•••••  fju^ 

Brown,  S.K 611 

Baldwinr  William  O 619 

Garland,  L.  J * 570 

Clayton,  T.  G - 597 

Calvert,  Frederick 605 

Cook,  JobnO 645 

Clarvoe,  John  A»  W ....... .  688,  696 

Cae8,John 724 

Dixon,  William 583 

E«i8tman,  A.  B 576 

Foy,  James.. .. , 653 

Ford,  John  T 545,  550 

Ford.H.C 553 

Ford,  J.  R 579,593 

Fitspatrick,  Honora 713 

Gifford,  J.  J 557 

Geary,  Thomas 640 

He8s,C.  B 565 

Henze,  Bernard * .  631 

Henze,  Martin 632 

Homer,  W<  H.r 644 

HoUahan,  John 650,  669 

Hollahan,  Eliza 688 

Hawkins,  Eliza 692 

Kiesecker,A.C-... 585 

Kimball,  Charles 600 


Lamb,  James 588 

Lloyd,  Joshua 598 

Lambert,  T.  J 659  669 

Lambert,  Mrs.  F.  R 661 

Lee,  Edwin  G 680 

Manson,  V.  B 621 

Middleton,  Henry 648 

HcDevitt,  James  A .  707 

Naylor,  Benjamin  J 627 

Nackmann,  George 635 

Owen,  S.  W 545 

Orme,  L.  J......      623 

Orme,  George  E 628 

O'Beime,  James  R 610 

Pumphrey,  James  W 644 

Pumphrey,  Jackson 658 

Raybold,T.  J 612 

Rainey,  John 647 

Skippon,  Charles 593,  712 

Stewart,  Charles  B 723 

Voss,  A e:iS 

Williams,  T.  W 655 

Ward,  Francis  A 620 

Wise,  John  H 621 

Watson,  William  J 625 

Williams,  Margaret 666 

Wyvill,  E.  H 712 


TRIAL. 


June  10,  1867. 

The  conrt  was  opened  at  10  o'clock.  Present :  the  district  attorney,  E.  C. 
Canriogton,  esq.,  his  assistant,  N.  Wilson,  esq.,  and  associate  counsel,  Messrs. 
Edwards  Pierrepont  and  A.  G.  Riddle,  for  the  United  States,  and  the  prisoner 
aod  his  coansel,  Messrs.  Joseph  H.  Bradley,  B.  T.  Merrick,  and  Joseph  H. 
Bndlej,  junior. 

The  Court  said :  Gentlemen,  this  is  the  day  assigned  for  the  trial  of  John 
H.  Sarratt,  indicted  for  the  murder  of  Abraham  Lincoln,  late  President  of  the 
United  States.     Are  you  ready  to  proceed  1 
Mr.  Bradley.  The  prisoner  is  ready,  sir,  and  has  been  from  the  first. 
The  Court.  Are  you  ready,  Mr.  Garrington  1 

The  District  Attorney.  If  your  honor  please,  I  am  happy  to  be  able  to 
announce  that  the  government  is  ready  to  proceed  with  the  trial.  Before  we 
proceed,  however,  sir,  to  empanel  a  jury,  we  desire  to  submit  a  motion  to  the 
court,  which  motion  we  have  reduced  to  writing.  With  the  permission  of  the 
court  I  will  DOW  proceed  to  read  it  to  your  honor.     It  is  as  follows : 

In  the  Supreme  Court  of  the  District  of  Columbia.  United  States  vs,  John 
H.  Surrait.     Indictment,  murder. 

And  now,  at  this  day,  to  wit,  on  the  10th  day  of  June,  A.  D.  1867,  come  the 
United  States  and  the  said  John  H.  Surratt,  by  their  respective  attorneys ;  and 
the  jurors  of  the  jury  empanelled  and  summoned  also  come ;  and  hereupon  the 
said  United  States,  by  tneir  attorney,  challenge  the  array  of  the  said  panel, 
becaui^  be  saith  that  the  said  jurors  comprising  said  panel  were  not  drawn 
according  to  law,  and  that  the  names  from  which  said  jurors  were  drawn  were  not 
selected  according  to  law;  wherefore  he  prays  judgment,  and  that  the  said  panel 
may  be  qu^ished. 

The  District  Attorney.  This  motion,  if  your  honor  please,  is  sustained  by 
an  affidavit  which  I  hold  in  my  hand,  and  which,  with  the  permission  of  your 
honor,  1  will  now  proceed  to  read.     We  think  that  it  will  be  found  unneces- 
sary, after  this  affidavit  has  been  read,  to  introduce  any  oral  testimony. 
The  affidavit  was  then  read  as  follows : 

District  of  Columbia,  County  of  Washington^  to  vnt: 

Be  it  remembered  that  on  this  seventh  day  of  June,  A.  D.  1867,  before  the 
lubscriber,  a  justice  of  the  peace  in  and  for  the  county  aforesaid,  in  the  District 
aforesaid,  personally  appeared  Samuel  Douglass,  who,  being  first  duly  sworn, 
deposes  and  says,  that  in  the  months  of  January  and  February,  A.  D.  1867,  he 
vas  regi:<ter  of  Washington  city,  in  t^e  District  aforesaid ;  that  about  the  first 
of  February  in  said  year,  this  affiant  deposited  in  the  box  required  to  be  kept 
in  the  office  of  the  clerk  of  the  supreme  court  of  the  District  of  Columbia,  four 
hondred  names,  (each  name  being  written  on  a  separate  piece  of  paper,  and  each 
paper  being  carefully  rolled  and  tied,)  as  a  part  of  the  names  from  which  jurors 
were  to  be  selected  under  the  provisions  of  the  act  of  Congress  of  June  16,  1862 ; 
that  at  the  same  time  the  clerk  of  the  levy  court  deposited  forty  names,  and  the 
clerk  of  Georgetown  deposited  eighty  names  in  said  jury  box ;  that  the  names 
deposited  by  this  official  were  selected  by  him  partly  from  the  poll  lists  of 
Washington  city  and  partly  from  the  names  of  citizens  who  he  thought  well 
qualified  to  serve  as  jurymen ;  that  the  names  of  the  persons  so  selected  by  this 
affiant  as  register  were  not  communicated  by  him  to  the  clerk  of  Georgetown  or 


4  TEIAL  OP.  JOHN  H.    SUBBATT. 

the  clerk  of  the  levy  court,  nor  did  they  at  any  time  know  the  names  selected 
by  this  affiant,  nor  did  this  affiant  know  at  any  time  the  names  of  those  selected 
by  the  said  clerk  of  Georgetown,  nor  by  the  clerk  of  the  levy  court ;  that  the 
names  having  been  deposited  as  aforesaid,  the  box  was  returned  to  the  clerk  of 
the  supreme  court  of  the  District  of  Columbia,  and  by  said  clerk  sealed,  as  this 
affiant  believes,  in  the  presence  of  this  affiant ;  that  the  petit  jurors  for  the  March 
term  of  the  criminal  court,  1867,  were  selected  or  drawn  from  the  names  depos- 
ited in  said' box  on  said'^first  day  of  February,  and  were  drawn  by  the  clerk  of 
G^orget^>wn,'as  this  affiant  recollects  and  believes;  that  the  names  were  deposi- 
ted in  the  manner  hereinbefore  stated  and  in  no  other  way,  and  that,  if  it  appears 
that  any  of  the  names  fur  Washington  city,  deposited  as  aforesaid,  and  in  the 
handwriting  of  any  persop,  whether  this  affiant  or  his  clerk,  then  the  same  were 
deposited  without  the  knowledge  or  consent  of  this  affiant ;  and  further,  this 
aigiant  says  that  the  paper  or  papers  containing  the  names  of  those  whose  names 
were  written  on  said  four  hundred  pieces  of  paper  and  deposited  as  aforesaid,  he 
cannot  Diow  find,  although  he  has  made  diligent  search  for  the  same. 

•  SAMUEL  E.  DOUGLASS. 

Subscribed  and  sworn  to  before  me  this  sevetith  day  of  June,  1867. 

CHAS.  WALTER,  J.  P. 

The  Court.  Mr.  Carrington,  will  you  be  kind  enough  to  read  that  part  of 
the  affidavit  which  speaks  of  the  handwritmg  of  the  affiant  ? 

Mr<  Carrington  then  read  as  follows  : 

**  That  the  names  were  deposited  in  the  manner  as  hereinbefore  stated,  and  in 
no  other  way,  and  if  it  appears  that  any  of  the  names  for  Washington  city,  de- 
posited as  aforesaid,  are  in  the  handwriting  of  any  person  other  than  this  affiant 
or  his  clerk,  then  the  same  were  deposited  without  the  knowledge  or  consent  of 
this  affiant.*'. 

The  Court.  Are  there  any  of  those  names  which  are  not  in  the  handwriting 
of  Mr.  Douglass  ? 

The  District  Attorney.  Perhaps  it  is  better  that  I  should  proceed  at  once 
to  state  to  your  honor  the  points  upon  which  we  rely,  and  which  we  think  will 
satisfy  the  court  that  the  law  has  not  been  complied  with 

Mr.  PiBRRRPONT.  In  any  respect. 

The  District  Attornbv.  And  that  a  verdict  rendered  by  this  jury  would 
be  entirely  illegal.  Feeling  that  it  would  be  idle  to  proceed  to  trial  with  the 
present  panel,  we  have  considered  it  our  duty  to  present  this  point  to  the  court, 
and  with  your  honor's  permission,  will  lay  before  you  the  law  bearing  on  the  sub- 
ject. 

I  will  read  first,  sir,  those  sections  of  the  act  of  June  16,  1862,  (12  Statutes 
at  Large,  p.  428,)  which  we  reeard  as  necessary  to  elucidate  the  propositions 
which  we  propose  to  submit,  and  will  then  state,  more  clearly  than  I  have  done, 
the  objections  which  we  make.  The  act  is  entitled  "An  act  providing  for  the 
selection  of  jurors  to  serve  in  the  several  courts  of  the  District  of  Columbia." 

Mr.  Carrington  then  read  as  follows : 

Be  it  enacted  by  the  Senate  and  House  of  RepreserUatives  of  the  United  States 
of  America  in  Congress  assembled.  That  it  shall  be  the  duty  of  the  register  of 
Washington  city,  and  of  the  respective  clerks  of  the  city  of  Georgetown  and  the 
levy  court  of  Washington  county,  in  the  District  of  Columbia,  within  one  month 
after  the  passage  of  this  act,  and  on  or  before  the  first  day  of  February  in  each 
year  thereafter,  to  make  a  list  of  such  of  the  white  male  citizens,  tax-payers, 
residing  within  their  respective  jurisdictions,  as  they  shall  judge  best  qualified  to 
serve  as  jurors  in  the  courts  of  the  said  District,  in  which  lists  may  be  included, 
in  the  discretion  of  the  officer  making  the  same,  the  names  of  such  qualified 
persons  as  were  on  the  list  of  the  previous  year,  but  did  not  serve  as  jurors,  and 


TRIAL  OF  JOHN  H.    8URRATT.  5 

the  lists  thos  made  by  the  register  and  clerks  aforesaid  shall  be  kept  bj  them, 
respectivelj,  and  be  delivered  over  to  their  successors  in  office. 

Sec.  2,  And  he  it  further  enactedt  That  the  officers  aforesaid  shall  select  from 
tbe  list  of  the  register  of  Washington  city,  the  names  of  four  hundred  peK«ons  ; 
firom  that  of  the  clerk  of  Georgetown,  eighty  persons,  and  from  that  of  the  clerk 
of  tiie  levy  court,  forty  persons,  which  proportion,  after  the  year  eighteen  hundred 
and  sixty-three,  may  be  varied  from  year  to  year  according  to  the  increase  or 
decrease  of  population  in  the  respective  jurisdictions,  by  order  of  the  judges  of 
tiie  circuit  court  of  Washington  county. 

Sec.  3.  And  be  it  further  enacted.  That  the  mayors  of  the  cities  of  Wasbing- 
ton  and  Georgetown,  all  judicial  officers,  salaried  officers  of  the  government  of 
the  United  States,  conmiissioners  of  police,  and  those  connected  with  the  police 
or  fire  department,  counsellors  and  attorneys  at  law,  ministers  of  the  gospel  stfiA 
priests  of  every  denomination,  practicing  physicians  and  surgeons,  keepers  of 
lospitals,  asylums,  almshouses,  or  other  charitable  institutions  created'  by  6r 
under  the  laws  relating  to  the  District  of  Columbia,  captains  and  mtisters  and 
other  persons  employed  on  vessels  navigating  the  waters  of  said  District,  and 
keepers  of  public  ferries,  shall  be  exempt  from  jury  duty,  and  their  names  shall 
not  be  placed  on  the  list  aforesaid. 

Sec.  4.  And  be  it  further  enacted,  That  the  names  selected  from  said  lists 
shall  be  written  on  separate  and  similar  pieces  of  paper,  which  shall  be  so  folded 
or  rolled  up  that  the  names  cannot  be  seen,  and  placed  in  a  box,  to  be  provided 
bj  the  register  and  clerks  aforesaid ;  which  box  shall  be  sealed,  and  after  being 
thoroughly  shaken,  shall  be  delivered  to  the  clerk  of  the  circuit  court  of  Wash- 
ington county  for  safe  keeping. 

Sec.  5.  And  be  it  further  enacted,  That  the  said  register  and  clerks,  and  the 
clerk  of  the  circuit  court,  shall,  at  least  ten  days  before  the  commencement  of 
each  term  of  the  circuit  court,  or  of  the  criminal  court,  meet  at  the  City  Hall  in 
Washington  city,  and  then  and  there  the  clerk  of  the  circuit  court  shall  publicly 
break  the  seal  of  said  box,  and  proceed  to  draw  therefrom  the  names  of  so  many 
persons  as  are  required  ;  and  if  the  jury  about  to  be  drawn  is  intended  for  service 
in  the  criminal  court,  the  twenty-three  persons  whose  names  shall  be  first  drawn 
shall  con.^titute  the  grand  jury ;  and  the  twenty-six  persons  whose  names  shall 
next  be  drawn  shall  constitute  the  petit  jury  for  that  term  ;  but  in  a  capital  case 
where  the  said  panel  shall  have  been  exhausted  by  reason  of  challenge  or  other- 
wise, the  court  before  whom  such  capital  case  is  pending  may,  in  its  discretion, 
order  additional  names  to  be  drawn ;  and  if  all  of  the  nam<;8  in  the  box  shall 
have  been  drawn  out  and  no  jury  found,  the  court  may  order  the  marshal  to 
summon  talesmen  until  a  jury  shall  be  found.  And  if  a  jury  be  required  for  the 
circuit  court,  the  twenty-six  persons  whose  names  shall  first  he  drawn  shall  con- 
stitute the  jury  for  that  term,  and  the  names  of  the  persons  dmwn  as  aforesaid 
shall  not  be  again  placed  in  such  box  for  the  period  of  two  years.  If  any  per- 
son whose  name  is  so  drawn  shall  have  died  or  removed  from  the  District,  or 
has  become  oiherwitte  disabled  from  serving  as  a  juror,  the  said  register  and 
clerks  shall  draw  from  the  box  another  name,  who  shall  serve  instead ;  and  after 
the  requisite  number  of  jurors  shall  have  been  so  drawn,  the  said  box  shall  be 
again  sealed  and  delivered  to  the  ch?rk  of  the  circuit  court  as  aforesaid. 

Sec.  C.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of  the  marshal 
of  the  District  of  Columbia,  at  least  five  days  before  the  meeting  of  the  court 
for  which  a  jury  is  required,  to  notify  each  person  drawn,  by  serving  on  him  a 
notice  in  writhig  of  his  selection  as  a  juror  of  the  court  he  is  to  attend,  and  of  the 
day  and  hour  he  is  to  appear ;  which  notice  shall  be  given  to  each  juror  in  per- 
son, or  be  left  at  his  usual  place  of  residence,  a  copy  of  which  notice,  with  his 
certificate  stating  when  and  in  what  manner  the  original  was  served,  shall  be 
letnmed  by  the  said  marshal  to  the  court  before  the  commencement  of  the 
erm  for  which  the  said  jurors  were  drawn. 


6  TEIAL  OF  JOHN   H.   SURRATT. 

Sec.  7.  And  he  it  further  enacted.  That  in  case  either  of  the  officers  whose 
duty  it  is  to  make  out  the  lists  aforesaid,  shall  neglect  or  refuse  to  act,  or  in  case 
either  of  them  shall  be  interested  in  any  action  or  proceeding  pending  in  the 
said  circuit  or  criminal  court,  the  chief  judge  of  the  circuit  court  shall  appoint  a 
fit  and  proper  person  to  discharge  the  duty  instead ;  and  if  the  persons  selected 
as  jurors  do  not  attend,  the  court  may  order  the  marshal  to  summon  other  re- 
spectable tax- payers,  possessing  the  other  legal  qualifications,  to  supply  the  de- 
ficiency. And  if  at  any  time  there  should  not  be,  bj  reason  of  challenge  or 
otherwise,  a  sufficient  number  of  jurors  to  make  up  the  panel,  the  court  shall 
order  the  marshal  to  summon  as  many  talesmen  as  are  necessary  for  that  pur- 
pose. 

Sbc.  11.  And  be  it  further  enacted.  That  the  names  on  the  lists  specified 
in  the  second  section  of  this  act  shall  be  selected,  as  near  as  may  be,  from 
among  the  citizens  of  the  several  wards  of  the  cities  of  Washington  and  G-eorge- 
town,  and  the  three  divisions  of  the  county  of  Washington  outside  the  limits  of 
said  cities  formed  by  the  Eastern  Branch  of  the  Potomac  river  and  Rock  creek, 
in  proportion  to  the  number  of  taxable  inhabitants  residing  in  said  wards  and 
districts,  respectively. 

Now,  if  your  honor  please,  we  submit  the  following  propositions: 
First,'  That  the  jurors  constituting  this  panel  were  not  selected  in  the  manner 
required  by  the  act  of  Congress,  to  which  your  honor's  attention  has  been  called. 
Second.  That  the  jurors  were  not  drawn  in  the  manner  required  by  this  act 
of  Congress. 

Third.  That  the  officers  have  failed  to  preserve  and  perpetuato,  as  required 
by  this  act,  the  list  which  they  are  required  by  the  act  to  prepare,  reduce  to 
writing,  and  safely  keep,  to  hand  over  to  their  successors  in  office;  and, 

Fourth.  That  the  box  has  not  been  sealed,  as  required  by  the  act  of  Congress, 
to  which  your  attention  has  been  called. 

Mr.  Bradley.  Is  that  in  the  affidavit,  that  the  box  was  not  sealed  / 
Mr.  PiBRBEPONT.  Yes,  sir. 
Mr.  Bradley.  It  had  escaped  my  attention. 

The  DisrRrcT  Attorney.  Now,  if  your  honor  please,  in  regard  to  the  first 
proposition,  you  will  find  that  the  law  requires  that  the  jurors  who  are  to  serve, 
either  in  the  circuit  or  criminal  court,  for  the  District  of  Columbia,  shall  be 
selected  by  the  three  officei*8,  constituting  a  board  for  this  purpose  Congress 
evidently  did  not  intend  to  leave  the  selection  of  jurors  to  any  one  officer,  or  any 
one  person,  but  in  so  many  words,  it  charges  the  duty  of  selecting  the  jurors  upon 
the  three  officers  named— the  register  of  the  ciiy  of  Washington,  the  clerk  of 
Georgetown,  and  the  clerk  of  the  levy  court  of  the  county  of  Washington. 

Your  honor  understands  the  mode  in  which  it  is  done.  The  register  of  the 
city  of  Washington  makes  out  a  list  of  four  hundred  persons,  whom  he,  in  the 
exercise  of  his  discretion,  shall  think  best  qualified  to  serve  as  jnroi*s.  The 
clerk  of  Georgetown  makes  out  a  list  of  eighty;  the  clerk  of  the  levy  court 
makes  out  a  list  of  forty ;  and  from  these  three  lists,  thus  prepared  by  these 
officers,  by  their  joint  action,  the  jurors  are  selected.  Then,  if  your  honor  please, 
that  being  the  case,  let  us  see  if  this  requirement  of  the  law  has  been  complied 
with. 

Your  honor  will  observe  from  the  affidavit  of  Mr.  Douglass,  (and  surely,  sir, 
there  is  no  more  faithful  and  intelligent  officer  than  he  is,  but  he  may  have  mis- 
apprehended this  law,)  that  he  selected  four  hundred  names,  wrote  them  down 
upon  separate  pieces  of  paper,  and  deposited  them  in  the  box  without  communi- 
cating with  the  clerk  of  the  levy  court,  or  the  clerk  of  Georgetown,  with  whom 
the  law  requires  him  to  co-operate  in  making  the  selection  of  jurors.  In  other 
words,  according  to  the  affidavit  which  has  been  read  here,  he  selected  the 
names  of  four  hundred  persons  to  serve  as  jurors,  in  which  selection  neither  the 


TRIAL  OF  JOHN   H.    SURRATT.  7 

clerk  of  the  levy  court,  nor  the  clerk  of  Georgetown,  had  any  voice.  It  is 
the  act,  then,  of  one  man,  whereas  the  law  requires,  if  your  honor  please,  and 
very  properly,  as  we  conceive,  that  it  should  be  the  act  of  three  men.  You  will 
see,  sir,  mm  the  language  of  the  act,  that  it  was  the  intention  of  the  national 
legislature  that  it  should  be  the  joint  action  of  the  three  officers  charged  with  the 
important  duty  of  selecting  persons,  who  should  represent  the  community,  in  the 
administration  of  justice,  as  jurors.  They  were  unwilling  to  intrust  this  import- 
ant duty  exclusively  to  the  discretion  of  a  single  officer.  Not  only  has  this  dis- 
cretion been,  in  violation  of  law,  exercised  by  one,  but,  sir,  according  to  this 
affidavit,  it  further  appears  that  a  similar  mistake  was  committed  by  the  other  two 
officers.  Mr.  Laird,  the  clerk  of  Greorgetown,  selects  eighty  persons;  Mr. 
Oallan,  the  clerk  of  the  levy  court,  selects  forty;  and  thus  the  case  is  pres- 
ented to  your  honor  of  four  hundred  jurors  selected  by  one  man,  eighty  jurors 
selected  by  another  man,  and  forty  jurors  selected  by  a  third  man,  when  the  law 
distinctly  requires  that  it  should  be  the  joint  action  of  all. 

Then,  if  your  honor  please,  if  this  affidavit  is  worthy  of  your  confidence,  this 
is  a  fata]  objection  to  the  present  panel. 

But,  again,  sir,  the  section  to  which  I  called  your  attention  specifies  distinctly 
the  mode  in  which  these  jurors  shall  be  drawn.  Congress  has  thought  proper 
that  jurors  who  shall  be  charged  with  the  highest  and  most  solemn  duty  of  an 
American  citizen,  who  are  intrusted  with  the  lives  and  liberties  of  their  fellow- 
citizens,  should  be  selected  by  one  board,  and  drawn  by  another  officer.  But 
how  is  it  in  this  case?  One  of  the  men  who  selected  a  portion  of  the  jurors, 
according  to  the  testimony  of  Mr.  Douglass,  assumes  to  discharge  the  duty  which 
is  devolved  by  law  upon  the  clerk  of  the  circuit  court.  He  selects,  and  then 
draws.  The  law  says  the  three  officers,  to  whom  your  attention  has  been  called, 
shall  select,  and  the  clerk  of  the  circuit  court  shall  draw.  It  is  unnecessary 
that  I  should  detain  your  honor  further  upon  this  point,  for  it  is  clear  and  con- 
diuive. 

Again,  sir,  in  the  discharge  of  this  important  duty.  Congress  has  very  wisely 
provided  for  all  the  details.  It  may  appear  to  your  honor  at  the  first  glance  to  be 
Qnimportant,  but  upon  a  moment's  reflection  you  will  see  that  it  is  not  so.  Con- 
grws  having  prescribed  how  these  jurors  shall  be  selected ;  how  these  names 
Rhall  be  deposited,  it  also  designates  the  officer  by  whom  the  jurors  are  to  be 
drawn,  and  when  and  where  such  drawing  is  to  take  place.  We  submit,  there- 
fore, that  this  important  requirement  of  the  law  has  not  been  complied  with  by 
the  officers  charged  with  the  peiformance  of  the  duty.  These  three  points  we 
think  are  fatal  objections  to  proceeding  with  the  present  panel. 

Again,  if  your  honor  pleases,  Congress  has  thought  it  proper  that  the  founda- 
tion of  the  action  of  these  officers  should  be  preserved  and  perpetuated,  and 
▼ery  wisely.  The  officers  charged  with  this  important  duty,  and  invested,  as 
yonr  honor  will  observe  here  by  the  language  of  the  act,  with  a  discretion, 
shall  preserve  and  perpetuate  the  testimony,  or  rather  the  lists  of  the  names 
from  which  they  made  their  selection  ;  and  why  1 
Mr.  PiRRREPuNT.  No  list  was  ever  made. 

The  District  Attorney.  Exactly,  I  am  coming  to  that.  The  law 
requires,  not  only  that  they  should  make  a  list,  but  that  they  should  preserve 
Md  perpetuat4'  it,  handing  such  list  over  to  their  puccessors,  when  they  shall 
retire  from  office.  If  through  misapprehension,  or  mistake,  or  for  any  other 
reason,  these  officers  fail  to  properly  discharge  this  important  duty,  the  court 
having  a  supervisory  power  over  their  action  may  correct  it,  if  it  be  capable 
of  correction,  but  if  they  fail  to  reduce  these  names  to  writing — if  they  fail  to 
P^tnate  them,  and  therefore  cannot  now,  when  called  upon,  submit  them  to 
the  inspection  of  your  honor,  how  can  this  court,  charged  by  the  law  of  the  land 
'nth  a  supervisory  power  over  the  discretion  intrusted  to  these  officers,  discharge 
its  duty  ?     These  lists,  according  to  the  affidavit,  were  never  made — at  least  there 


8  TRIAL  OF  JOHX   H.   SURRATT. 

M  DO  certahatv  of  their  having  been  made.     Ther  cannot  be  prodaeed  at  all 
eTffct*. 

ThiB  failure  of  datj.  then,  on  the  part  of  these  offieer*.  is  fatal,  because  the 
teftimoDv,  or  rather  the  first  preliminaiy  et^ep  required  hv  the  act  of  CoDgreas 
to  be  taken,  has  not  been  taken  ;  and  second,  becaose  yoor  honor  cannot  be  ad- 
Tised  6om  these  list*,  of  the  selections  which  weye  reallj  made.  Therefore,  if 
m  paint  of  fact,  there  has  been  either  throngh  hmd  or  partiality,  which  we  do 
not  charge  in  this  case,  ur  misappreheiisioD  of  the  law,  sncn  develicdon  of  do^ 
as  we  hav^  stated,  it  will  be  impossible  for  jour  honor  to  dvcharge  that  saper- 
risoiy  dntj.  which  is  dearly  incnmbent  npon  ereiy  oonn  in  Vie  administration 
of  justice. 

I  do  not  know  that  it  is  neeeasary  that  I  shonli  detain  yoor  honor  farther. 
We  think  these  objections  are  £iia]«  It  may  be  proper  for  me  to  state  in  this 
connection  thai  the  object  of  tius  motion  is  not  delay.  We  are  ready  and  anx- 
ious f^r  a  triaL  and  miy  I  be  pardoned  for  saying  here  that  nerer  at  any  stage 
of  this  case,  hare  I  been  disposed  to  delay  it  any  longer  than  we  thooght  neces- 
sary f«ir  the  pixtmoTion  of  the  eanse  of  justice  and  of  truth.  I  repeat  we  are 
ready  n  iw.  bu:  we  want  a  jury  summoned  according  to  law,  so  that  no  objeetioa 
can  be  made  hereafter,  either  by  the  goTenmient  or  the  accused,  whateTer  may  be 
the  event  of  this  mo«t  important  and  solemn  triaL  To  show  yoor  honor  that  there 
need  be  no  delay.  I  will  call  your  attention  to  tiie  5th  section  of  the  act,  which 
gives  the  court  plenary  pow;?rs  to  proceed  at  once,  if  there  has  been  such  in- 
f<MmaliTy  in  the  selection  of  the  juror?  by  the  officers  char^i  with  that  duty; 
or  if  fnnn  any  caher  cause  it  is  found  impossible  to  proceed  with  the  panel  so  se- 
lected, the  conn  may  order  the  mai^hal  to  summon  talesmen  at  once.  I  will 
read. 

Mr.  Canrngton  then  read  the  dth  section  as  follows: 

bBC.  o.  Jm^  be  iffwrtk^  enacted^  That  the  said  register  and  clerks,  and  the 
derk  of  the  circuit  c>>urT.  shall,  at  least  ten  days  before  the  commencement  of 
each  term  \i  the  circuit  or  of  the  criminal  court,  meet  ax  the  City  Hall,  in 
Washington  chy.and  then  and  there  the  clerk  of  the  circuit  court  shall  publicly 
break  the  seal  of  said  bi>x  and  proceed  to  draw  therefrom  the  names  of  so  many 
persons  as  are  required :  aod  if  the  juiy  about  to  be  drawn  i«  intended  for 
service  in  the  criminal  court,  the  twenty>thiee  persons  whose  names  shall  be 
first  drawn  shall  consiimte  the  grand  jury :  and  the  twenty-six  persons  whose 
names  shall  next  he  drawn  shall  constitute  the  petit  jury  for  that  term :  but  in 
a  capital  case  mhere  the  said  panel  shall  have  l^een  exhausted  by  reason  of  chal- 
lenge or  otherwise,  toe  court  before  whom  such  ca;.iital  case  is  pending  may,  in 
its  discretion,  order  Hdditi>aal  names  to  be  drawn :  and  if  all  of  the  names  in 
the  box  shall  have  been  drawn  oat  and  no  jury  found  the  court  m&y  order  the 
mmhal  to  summon  talesmen  until  a  jury  shall  be  found.  And  if  a  jury  be 
required  f^r  the  circuit  court,  xht'  twenty >six  per^.ms  wb«>se  namtss  shall  first  be 
drawn  shall  constitute  the  jury  for  that  term,  and  the  names  of  the  persons 
drawn  as  aforesaid  shall  not  be  again  placed  in  such  box  f«ir  the  period  of  two 
years.  If  any  person  whose  name  is  so  drawn  shall  have  died  or  removed  from 
the  District,  or  has  liecome  otherwise  disabled  from  serving  as  a  juror,  the  said 
register  and  clerks  shall  draw  from  the  box  another  name,  who  shall  serve 
inst«-ad  :  and  after  the  requisite  number  of  jurors  shall  iave  been  so  drawn  the 
said  box  shall  be  again  scsiled  and  delivered  to  the  clerk  of  the  cireoit  court  as 
aforesaid. 

That  is  what  we  now  ask  your  honor  to  do.  I  have  authorities  showing  that 
the  whole  matter 

The  Court.  That  relates  to  the  entire  panel  ? 

Mr.  PiESREPOXT.  Yes.  sir. 

Itr.  BajiDLKV.  Before  we  proceed  at  all  to  the  discussion  of  the  qneetioos 
laised  npon  this  motion  and  affidavit.  I  beg  leave  to  submit  to  the  coait  that,  at 


TRIAL   OP  JOHN   H.    8UEBATT.  9 

Mr,  DoQglasB  is  at  quite  a  convenient  distance  from  here,  he  be  sent  for  and 
examined  by  the  court,  in  order  tha.t  we  may  see  what  the  facts  really  are.  I 
am  not  apprised,  up  to  this  moment,  that  they  have  departed  from  the  mode  of 
preparing  and  drawing  juries  observed  from  the  year  1862  up  to  this  time.  I 
take  it  for  granted  that  they  have  pursued  the  same  course  all  the  way  through. 
I  would  be  very  glad  to  havejt^he  opportunity  of  cross-examining  the  witness. 
I  see  the  affidavit  is  iu  the  handwriting  of  Mr.  Wilson,  the  assistant  district 
attorney,  and  I  should.  like  to  have  Mr.  Bouglass  brought  in  and  examined  as 
to  particulars.  I  think  it  is  best  to  first  ascertain  the  facts  before  we  attempt 
to  apply  the  law  to  this  particular  case. 

Mr.  PiBRREPONT.  We  do  not  see  how  there  can  be  any  objection  to  that,  if 
jour  honor  sees  fit.     I  think  it  is  a  very  proper  request.  • 

The  Court.  Do  I  understand  the  counsel  for  the  prosecution  to  agree  to  an 
oral  examination  ? 

Mr.  Pi KRRBPONT.  I  know  nothing  as  to  what  the  custom  here  is,  your  honor. 
Whatever  is  right  and  fair  in  the  matter,  of  course,  we  want  done.  If  such 
is  the  custom,  we  assent  to  it ;  if  such  is  not  the  custom,  we  do  uot.  Where  I 
am  in  the  habit  of  practicing  it  is  the  custom  to  bring  on  the  affidavit  before  the 
eonrt  where  a  motion  is  made. 

The  Court.  I  cannot  speak  as  regards  the  custom  here,  except  for  the  four 
years  past     In  that  time  there  has  been  no  custom  at  all,  for  the  simple  rea:)on^ 
that  no  case  of  this  sort  has  ever  been  presented  to  the  court.     I  understand^ 
from  Mr.  Middleton,  who  has  been  deputy  clerk  of  the  court  for  a  number  of" 
years,  that  no  case  has  ever  occurred  under  his  observation.     I  presume,  kow-- 
ever,  that  it  is  to  be  viewed  in  the  same  light  as  a  motion  to  change  the  venue. 
In  that  case  the  motion  is  granted  Upon  affidavit ;  oral  explanations  are  not  cus- 
tomary.   1  have  never  myself,  in  my  practice  anywhere,  seen  a  case  of  the  sort. . 
It  is  right,  in  a  case  of  this  character,  that  everything  which  forms  the  basis  of  at 
decuiion  by  the  court  should  appear  upon  the  record.     For  that  reason,  I  pre- 
SQine,  the  law  requires  that  motions  of  this  kind  should  be  grounded'  upon, 
written  testimony. 

Mr.  Bradlrv.  I  will  simply  state,  in  reply  to  the  suggestions  throwu  out  by 
your  honor,  that  the  reporter  is  here  to  take  down  the  affidavit  of  the  party. 
The  examination  and  cross-examination  so  taken  down,  being  written  out  in 
regular  order  among  the  other  proceedings,  will  thus  appear  as  an  affidavit 
on  record,  duly  signed  by  the  party,  if  deemed  necessary.  I  am. not  aware  of 
•nycase  in  my  experience  of  this  kind.  We  raised  the  question  once,  many 
years  ago,  but  it  was  disposed  of  without  any  examination  into  the  facts.* 
That  was  a  challenge  of  the  array  by  the  prisoner,  so  far  as  my  memory 
serves  me,  and  the  case  went  on.  We  desire,  however,  to  have  spread  upon 
the  record  all  the  facts  of  this  case,  what  construction  this  law  has  received, 
And  how  it  has  been  interpreted  and  carried  out  since  its  pas8a<i;e  to  this  day. 
I  think  we  can  prove  very  clearly  that  in  this  instance  these  officers  have  fol- 
Wed  the  uniform  practice  since  the  pafsage  of  the  act,  in  June,  1862.  How 
fc^that  may  tend  towards  the  proper  construction  of  the  law  is  another  ques- 
tion, to  be  considered  when  we  come  to  ascertain  what  the  facts  are.  What  we 
propose  is,  to  have  put  upon  the  record  a  history  of  the  action. under  this  law. 
Mr.  PiBRRKPONT.  I  suppose,  sir,  if  your  honor  please  if  that  is  the  case — 
*^  perhaps  it  is  proper,  as  the  learoQ^  counsel  suggeslSr  that  it  should  be 
placed  upon  the  record  for  future  guidance — that  it  is-  necessary  it  should  be 
h  affidavit,  to  be  regularly  filed.  The  district  attorney  and  myself,  upon  con- 
s^tation  think,  accepting  the  theory  of  the  learned  vcouusel/ that  the  facts,  with 
the  decision,  should  be  preserved  as  a  part  of  the  record ; .  that  iL  should  be  by 
^davit,  and  we  feel  impelled,  therefore,  to  ask  the  court  that  such  a  course  be 
porsned. 


10  TRIAL   OF  JOHN    H.   SURBATT. 

Mr.  Bradley.  And  in  tbat  view  I  desire  that  the  affidavit  may  be  made  in 
open  coart,  in  the  presence  of  the  counsel  and  the  prisoner,  taken  down  by  the 
reporter,  and  afterwards  read  over  to  the  witness  and  signed  by  him.  That 
can  be  done  very  rapidly,  and  I  hope,  as  it  is  a  matter  entirely  within  the  dis- 
cretion of  your  honor,  that  such  a  course  will  be  pursued. 

The  District  Attornby.  Will  your  honor«please  defer  your  ruling  for  a 
moment  until  I  have  an  opportunity  to  consult  with  my  associate  ? 

After  a  brief  conference,  Mr.  Pierrepont  said :  If  your  honor  please,  with  the 
understanding  that  it  be,  as  coudsel  suggests,  taken  down  here  in  the  presence 
of  the  court  and  counsel,  and  made  to  become  a  formal  affidavit,  to  be  placed  on 
the  files  of  the  court,  we  consent. 

Mr.  Samubl'E.  Douglass  was  then  sworn  by  the  clerk,  when  the  affidavit, 
which  had  been  read  to  the  court,  was  handed  to  the  witness,  with  the  request 
that  he  would  read  it,  and  state  if  it  was  correct  in  all  particulars. 

Witness  did  as  requested,  and  then  stated  that  it  was  correct. 

He  was  then  examined  as  follows : 

By  Mr.  Bradley: 

Q.  Mr.  Douglass,  how  long  have  you  been  a  register  of  the  city  of  Wash- 
ington? 

A.  Since  the  1st  of  July,  1861. 

Q.  You  were  theu  rcgit«ter  at  the  time  of  the  passage  of  this  act  of  1862,  pro- 
viding for  the  selection  and  drawing  of  jurors  ? 

.A.  Yes,  sir. 

•Q.  State  whether,  in  the  drawing  of  this  last  pand  of  jurors,  you  pursued  any 
new  practice,  or  whether  you  observed  the  did  one? 

A.  The  old  practice.  The  same,  of  course,  that  I  had  always  pursued  in 
selecting  jurors,  viz.,  placing  their  names  on  slips  of  paper,  and  then  putting 
those  slips  in  the  box. 

Q.  From  the  time  of  the  passage  of  the  act  ? 

A.  Yes,  sir;  from  the  time  of  the  passage  of  the  act. 

Q.  Do  you  recollect  whether,  shortly  after  the  passage  of  that  act,  the  register 
of  the  city,  the  clerk  of  Greorgetown,  and  the  clerk  of  the  levy  court  did  or 
did  not  take  the  advice  of  the  judge  of  the  old  circuit  court  as  to  the  mode  of 
discharging  their  duty  ? 

Mr.  Piberbpont.  Please  wait  one  moment.  I  do  not  think  the  question  is 
a  proper  one.  I  do  not  propose  to  discuss  the  matter,  but  design  simply  to  make 
the  objection,  and  allow  the  court  to  decide  upon  it,  without  argument. 

The  Court.  I  cannot  see  that  it  has  any  relevancy  to  the  matter. 

Mr.BfiAULBY.  It  may  be  relevant  to  this  extent,  your  honor,  that  if  the  court 
then*  having  jurisdiction,  immediately  after  the  passage  of  the  act,  gave  construc- 
tion to  it,  and  these  officers  acted  in  pursuance  of  that  construction,  and  have 
since  that  time  followed  the  same,  and  have  done  iu  this,  as  in  other  instances, 
as  the  court  advised  them  to  do,  it  might  have  some  effect,  perhaps. 

Mr.  PiERRRPONT.  The  records  of  the  court  must  determine  its  decisions,  and 
not  the  actions  of  the  witness. 

Mr.  Bradi^by.  That  is  all  very  true.  The  records  of  the  court  must  show 
in  the  cases  between  parties;  but  not  with  regard  to  a  matter  outside  of  the  court, 
of  the  records  of  the  court,  and  not  in  g^  judicial  proceeding. 

The  Court.  I  suppose,  Mr.  Bradley,  you  are  directing  your  inquiry  to  some 
extra-judicial  opinion  which  was  given  by  one  or  more  of  the  judges  of  the  old 
circuit  court. 

Mr.  Bradlly.  That  is  it,  sir.  All  three  of  them  were  sitting  in  court.  There 
was  no  case  before  them,  however,  and  therefore,  of  course,  the  opinion  was 
exti-a-judicial  to  that  extent. 

Mr.  PiBRRBPONT.  Of  coarse  that  would  have  no  binding  effect. 


TEIAL  OP  JOHN   H.   SURBATT.  11 

Mr.  Bradley.  I  do  not  claim  that  it  would  have  any  hindine  effect.  I 
simply  want  to  get  at  the  opinion  upon  which  those  gentlemen  acted,  and  which 
was  given  at  the  time  of  the  passage  of  the  act.  I  would  state  further,  sir,  that, 
eren  had  this  opinion  heen  announced  from  the  hench,  it,  of  course,  would  not 

control  your  honor's  decision  on  the  same  question ;  hut 

Mr.  PiBBRBPONT.  It  coul^not  he  evidence  then  in  any  shape. 
The  Court.  I  do  not  see  that  it  has  any  hearing. 
Mr.  Bradley.  I  will  not  press  it,  then,  your  honor. 
The  examination  of  the  witness  was  then  resumed  hy  Mr.  Bradley : 
Q.  I  understand  yoa  to  say,  Mr.  Douglass,  that  in  drawing  the  jurors  for  the 
present  term  of  the  court,  you  made  out  your  list  of  four  hundred  tax-payers  of 
the  dty  of  Washington  t 
A.  No,  sir ;  I  do  not  know  that  they  were  all  tax-payers. 
Q.  Were  you  not  limiting  the  list  to  tax-payers  ? 
A.  Not  that  I  was  aware  of. 

The  District  Attorney.  The  act  says  that  should  he  done. 
Witness.  I  did  not  look  into  the  books  iu  the  collector's  office  to  ascertain 
whether  they  were  all  tax-payers  or  not. 

Q.  Have  you  any  recollection  of  putting  any  one  on  the  list  who  was  not  a 
tax-payer  ? 
A.  I  have  not. 

Q.  From  that  list  of  persons,  thus  made  out,  you  afterwards  wrote  on  little 
slips  of  paper  to  the  number  of  four  hundred,  each  name,  rolled  them  up,  and, 
without  consultation  with  the  clerk  of  Georgetown,  or  the  clerk  of  the  levy 
court,  deposited  them  in  the  box  ? 

A.  We  each  deposited  our  quota  in  the  box — Mr.  Callan,  Mr.  Laird,  and  my- 
self. 
Q.  But  neither  of  them  saw  your  list? 
A.  No,  sir. 

Q.  Did  you  see  theirs  ? 
A.  No,  sir. 

Q.  Do  I  understand  you  to  say  Mr.  Laird  brought  in  a  list  of  eighty,  and  Mr. 
Callan  forty? 
A.  Yes,  sir ;  I  think  that  is  what  the  law  requires. 
Q.  They  were  already  rolled  up  ? 
A.  Yes,  sir. 

Q.  And  each  of  you  deposited  the  number  required  by  law ;  you  400,  the 
other  80,  and  the  other  40  ? 
A.*  Yes,  sir. 
Q.  A  t  the  same  time  ? 
A.  Yes,  sir. 

Q.  In  the  presence  of  each  other  1 
A.  Yes,  sir. 

Q.  That  has  been  your  mode  of  executing  that  law  since  the  time  of  its 
passage! 
A.  Yes,  sir. 

Gross-examination  by  Mr.  Pierrepont  : 
Q.  Mr.  Douglass,  you  didn't  see  the  names  of  those  that  the  clerk  of  George- 
town deposited  ? 
A.  No,  sir ;  they  were  rolled  up,  and  a  piece  of  string  tied  round  them. 
Q.  You  did  not  see  the  names  of  those  that  the  other  clerk  deposited  ? 
A.  No,  sir. 

Q.  And  they  did  not  see  the  names  you  deposited  1 
A.  No,  sir. 
Q.  Were  those  that  they  deposited  the  names  of  tax-payers  J 


12  TRIAL   OF   JOHK   H.   SURRATT. 

A.  I  do  not  know. 

Q.  Were  those  that  you  deposited  the  names  of  tax-pay ers  ? 

A.  I  am  not  certain.  There  may  have  been  some  that  were  not  tax-payers. 

Mr.  Mbrrick..  I  desire  to  interpose  an  objection  here.  The  counsel  asks 
Mr.  Douglass  whether  he  saw  the  list  that  was  presented  by  the  oflScer  of  the 
corporation  of  Georgetown,  and  whether  that  officer  saw  the  list  that  was  pre- 
sented by  Mr.  Douglass.  It  is  to  that  inquiry  that  I  desire  to  make  an  objec- 
tion ;  and  suggest  to  your  honor  its  inadmissibility  upon  this  ground  :  Mr* 
Douglass  testified  that  these  three  officers  were  present,  and  together  engaged 
in  discharging  the  duty  which  the  counsel  upon  the  other  side  maintain  devolved 
upon  the  three  jointly. 

I  understand  their  position  to  be  this  :  That  the  act  vested  a  sort  of  judicial 
or  discretionary  power  in  the  three,  which  one  could  not  exercise  without  the 
co-operation  of  the  other  two ;  and  that  as  the  power  was  exercised  by  one 
without  the  co-operation  of  the  other  two,  it  was  improperly  exercised,  and 
therefore  vitiates  the  act  done. 

Now,  the  register  of  the  city  of  Washington  testifies  upon  the  stand  that 
when  this  duty  was  discharged,  it  was  discharged  by  the  three ;  that  the  three 
were  together,  and  together  deposited  certain  names  in  the  box,  in  which,  ac- 
cording to  law,  they  were  to  be  deposited,  and  from  which  Aey  were  to  be 
drawn.  Now,  I  submit  to  your  honor,  that  it  is  not  competent  for  the  counsel 
to  go  behind,  and  ascertain  from  one  of  the  parties  how  far  they  exercised  judg- 
ment or  discretion.  They  were  present,  acting  together ;  and  the  act  being 
done  in  the  presence  of  all,  is,  according  to  law,  as  a  presumption  of  law,  the 
act  of  all  under  the  statute ;  and  it  is  not  competent  for  the  counsel  to  go  be- 
hind the  doing  of  the  act  thus  done  conjointly  by  the  three  combined,  and 
ascertain  what  part  of  the  judgment  of  each  entered  into  the  execution  of  the 
act.  It  is  enough  that  they  were  present  at  the  doing  of  the  act,  and  that  the 
act  was  done. 

Mr.  PiERREPO.XT.  My  learned  friend  seems  to  be  arguing  anew  the  general 
proposition.  If  he  confines  his  argument  to  the  question  that  I  put  to  the  wit- 
ness, that  is  one  thing.  I  do  not  intend  at  this  stage,  until  the  evidence  is  be- 
fore your  honor,  to  argue  the  general  proposition ;  and  do  not  propose  to 
answer  him  upon  that  question.  I  have  not  finished  the  re- examination  of  the 
witness,  but  was  interrupted,  as  I  understood,  by  the  learned  counsel  objecting 
to  the  Hue  of  examination  being  pursued.  My  question  was  as  to  the  mode  in 
which  the  jurors  names  were  put  in  the  box,  and  which  he  has  answered.  Now, 
I  understand,  he  substantially  moves  to  strike  out 

Mr.  Mbrrick.  If  the  counsel  will  allow  me  a  single  moment.  I  did  not  in- 
terpose the  objection  at  an  earlier  moment  for  the  reason  that  my  associate  was 
engaged,  and  I  had  not  the  opportunity  of  consulting  with  him. 

Mr.  PiERREPONT.  I  am  not  objecting  on  the  ground  that  the  gentleman's 
motion  comes  too  late. 

Mr.  Merrick.  1  am  objecting  to  the  testimony,  and  not  arguing  the  general 
proposition. 

Mr.  PiE3REP0\T.  My  learned  friend,  run  somewhat,  I  thought,  perhaps  in- 
advertently, into  the  general  proposition. 

The  question  as  to  the  mode  of  selecting  these  jurors  is  surely  a  proper 
question.  I  do  not  think  it  admits  of  debate,  and  I  do  not  think  your  honor  will 
require  it  to  be  debated. 

The  Court.  I  can  see  no  impropriety  in  the  question  which  you  put.  The 
question  which  is  addressed  to  the  court  is  as  to  whether  these  parties  upon 
whom  the  law  devolved  this  duty  of  selecting  the  520  names  that  are  to  go  into 
the  general  jury  box  acted  together,  or  acted  in  their  individual  and  separate 
capacity.    The  question  is  one  which  you  are  seeking  to  inquure  into,  and  one 


TRIAL   OP  JOHN  H.  8UB&ATT.  13 

which  the  court  is  to  pass  upon  in  order  to  ascertaia  whether  the  jaiy  has  been 
duly  selected  or  not,  and  any  questions  which  are  directed  to  that  point  must 
be  considered  as  relevant  and  admissible. 

Mr.  PiBRRBPONT.  I  will  then  proceed  with  one  or  two  other  questions  : 

Q.  You  have  just  read  over  your  affidavit  ? 

A.  Yes,  sir. 

Q.  What  do  you  say  to  the  court  as  to  its  being  true  ? 

A.  It  is  true. 

Re-examined. 

By  Mr.  Bradlby  : 

Q.  It  is  said  in  that  affidavit  that  you  have  searched  for  the  list  made  out  by 
you.  State  to*  the  court  whether,  in  point  of  fact,  you  did  make  oat  a  list  and 
pat  it  away  for  preservation. 

A.  I  think  I  did.  I  divided  the  wards  up  on  sheets  of  foolscap  paper,  divid- 
ing the  city  as  near  as  I  possibly  could  with  regard  to  the  number  of  men.  I 
then  took  the  names  and  put  them  on  separate  slips  of  paper  and  rolled  them  up. 

Q.  You  are  distinct  you  did  make  out  such  a  list,  and  have  searched  for  it, 
bat  cannot  find  it  ? 

A.  Yes,  sir ;  t  am.    I  might  be  able  to  find  it  in  the  course  of  time. 

By  Mr.  Pibrrbpont  : 

Q.  You  say  '*  paper  or  papers,"  in  this  affidavit ;  you  made  memoranda,  did 
yoal 

A.  Yes,  sir ;  that  is  what  they  were,  on  separate  pieces  of  paper,  the  first  ward 
on  one  paper,  and  the  second  warA  on  the  other,  and  so  on. 

Q.  These  separate  pieces  of  paper,  then,  you  did  not  show  to  these  other  gen- 
tlemen! 

A.  No,  sir ;  the  names  were  all  rolled  up. 

Q.  It  has  not  been  your  habit  to  preserve  these  papers  ? 

A.  We  have  laid  them  aside  in  the  office,  some  of  them ;  we  have  generally 
done  so. 

Q.  Some  of  them,  you  say  1 

A.  All  of  them ;  we  have  generally  made  them  out,  and  laid  them  aside. 

Q.  You  do  not  know  what  you  have  done  with  this  last  list? 

A.  We  laid  it  aside  somewhere  among  a  lot  of  old  papers. 

Mr.  Bradley.  I  beg  leave  to  suggest  that  this  motion  has  taken  us  entirely 
by  surprise.  We  relied  upon  the  uniform  practice  in  the  execution  of  this  law 
from  the  time  of  its  passage,  and  therefore  have  had  no  reason  or  disposition  to 
look  into  the  mode  in  which  the  jury  has  been  selected  in  this  particular  case — 
moieespecially  as  more  than  one  person  has  been  on  trial  for  his  life  during  this 
term  of  the  court,  and  before  this  very  jury.  I  do  not  know  as  there  were  any 
convictions  in  capital  cases,  but  there  were  certainly  capital  trials. 

The  District  Attorney.  Only  one — Cleaver. 

Mr.  Bradley.  The  district  attorney  says  ouly  one ;  one  is  enough  at  any 
»te.  I  repeat  that  this  motion  takes  us  entirely  by  surprise.  We  came  pre- 
pred  to  try  the  case.  And  with  regard  to  the  motion  before  us,  a  grave  question 
lies  at  the  bottom  of  it:  whether  or  not,  if  your  honor  should  be  of  opinion  with 
4e  counsel  on  the  other  side  that  the  jurors  have  not  been  properly  summoned, 
*e  can  go  to  trial  unless  the  objection  comes  from  the  defendant,  he  having 
A  Ml  knowledge  of  the  facts ;  and  whether  a  verdict  against  him,  under  such 
ciitnmstances,  would  not  be  just  as  conclusive  as  if  the  jury  had  been  regularly 
^Ptnnelled.  I  am  well  aware  that  the  current  of  decisions  is  the  other  way, 
>na  that  where  life  is  concerned  there  can  be  no  waver  on  the  part  of  the  accused. 
There  are,  however,  decisions,  and  very  well-reasoned  ones,  supporting  the  right 
<^the  court  to  proceed  to  try,  convict,  and  execute,  where  the  prisoner,  knowing 
^  the  facts,  makes  no  objection.    It  is  with  this  view  that  I  ask  your  honor  to 


14  TRIAL   OP  JOHN   H.  8UBBATT. 

indulge  us  for  time  to  look  into  these  two  questions :  First,  the  construction  of 
the  law ;  and,  second,  as  to  the  effect  which  may  be  produced  in  the  event  of 
your  ruling  the  question  of  law  against  us,  and  in  favor  of  the  United  States ; 
that  is,  whether  it  is  a  thing  possible  for  the  accused  to  submit  his  case  to  the 
jury  empannelled,  and  which  has  served  during  this  term. 

Mr.  PiBRREPONT.  If  your  honor  please,  any  indulgence  that  the  counsel  shall 
ask,  that  your  honor  thinks  reasonable,  we  are,  of  course,  disposed  not  to  inter- 
fere with  in  the  least.  I  have  no  doubt  this  motion  has  taken  them  by  surprise, 
and  I  see  by  the  remarks  which  the  counsel  (Mr.  Bradley)  has  already  made, 
that  he  is  quite  familiar  with  the  law  on  this  subject,  and  I  think,  therefore,  is 
entirely  apprised  of  the  fact  that  if  this  jury  has  been  illegally  empanelled,  that 
if  he  should  stipulate,  if  all  his  associates  should  stipulate,  and  the  prisoner 
should  stipulate  to  abide  by  the  verdict,  the  verdict  would,  notwithstanding,  be 
utterly  worthless.  You  cannot,  for  grave  reasons  of  public  policy,  permit  any  ille- 
gal conviction  for  the  taking  of  the  life  of  one  of  our  citizens  to  stand  a  moment 
if  the  verdict  has  not  been  rendered  strictly  in  accordance  with  law,  and  no  stipu- 
lation of  counsel  or  prisoner  can  relieve  it.  I  believe  if  anything  is  settled  lately, 
that  is  well  settled.  My  learned  friend  suggests  that  he  has  seen  some  cases  in 
which  there  were  some  decisions  looking  the  other  way ;  1  do  not  know  what  he 
alludes  to.  ^ 

Mr.  Bkadlbv.  I  beg  my  learned  friend  to  understand  that  1  do  not  know  the 
fact  that  such  a  conviction  is  void  in  law ;  if  I  did,  I  certainly  would  not  stand 
up  here  and  controvert  it.  What  the  legal  conclusion  may  be,  is  the  very  thing 
I  ask  time  to  look  into. 

Mr.  PiERREPONT.  Certainly;  I  did  not  say  that  the  learned  counsel  "knows"  it. 

Mr.  Bradlbv.  You  did  say  so. 

Mr.  PiERREPONT.  From  the  remarks  that  the  learned  gentleman  did  make,  I 
inferred  that  he  knew  it.  In  my  view  of  it — and  I  certainly  am  in  some  mea- 
sure responsible  for  the  advice  I  may  give  here  to  the  government — I  should 
not  hesitate  in  saying  publicly  as  well  as  privately,  that  a  verdict  of  a  jury 
thus  illegally  empannelled  would  be  altogether  worthless,  and  that  i}0  man  could 
be  executed  upon  it,  or  suffer  any  punishment. 

Mr.  Bradley.  I  would  like  to  know  what  is  to  be  done  with  all  those  who 
have  been  already  executed. 

Mr.  PiERREPONT.  I  am  in  no  way  responsible  for  what  has  been  done. 

The  District  Attorney.  If  your  honor  please,  my  friend  (Mr.  Bradley) 
needn't  trouble  himself  about  that. 

Mr.  Bradley.  I  will  only  say  that  it  has  been  the  uniform  practice  since  the 
passage  of  the  act,  and  you  have  hung  a  dozen  men  under  it. 

The  District  Attorney.  Oh,  no,  not  quite  so  many  as  that.  And  I  will 
only  say  that  it  is  never  too  late  to  do  good.  I  don't  want  to  hang  any  more 
in  that  way. 

Mr.  Bradley.  If  your  honor  please,  the  construction  of  this  law  is  a  very 
nice  question,  and  although  our  friends  on  the  other  side  are  entirely  confident 
about  it,  I  will  simply  say  that  what  has  fallen  from  them  thus  far,  has  not 
satisfied  our  minds,  and  we  therefore  ask  until  to-moiTow  morning  to  look  into 
that  question.  It,  sir,  presents  a  very  grave  question,  whether  or  not  for  the 
last  five  years,  every  man  who  has  been  hung  has  been  hung  illegally. 

The  District  Attorney.  It  is  proper  for  me  to  state  that  we  are  willing  to 
grant  any  indulgence  which  the  counsel  may  ask,  and  which  the  court  thinks 
proper. 

The  Court.  We  will  give  you,  then,  Mr.  Bradley,  until  to-morrow  morning 
at  10  o'clock. 

Thereupon  the  court  adjourned. 


TEIAL  OF  JOHN  H.   SURBATT,  15 

June  11,  1867. 

The  court  met  at  1 0  o'clock  a.  m. 

Mr.  Bradley.  When  the  motion  waa  sabmitted  yesterday,  on  the  part  of  the 
prosecution,  to  quash  the  array  of  the  panel  in  this  case,  we  were  taken  by 
surprise,  as  we  well  might  have  been,  under  the  circumstances.  As  far  as  I  can 
ascertain  no  such  motion  was  ever  made  in  this  court.  The  particular  form  of 
the  motion  did  not  attract  my  attention  at  the  time,  but  upon  looking  at  it  since, 
I  find  that  it  is  not  only  novel,  but  that  there  is  no  precedent  for  it  either  in 
English  or  American  practice.  In  order  to  present  to  the  court  a  case  on  which 
the  court  can  decide  whether  the  jury  has  been  properly  summoned,  returned,  or 
impanelled,  the  motion  must  state  facts  and  not  conclusions  of  law.  I  will 
read  it  to  your  honor,  and  beg  leave  to  call  the  attention  of  our  brethren  on  the 
other  side,  to  a  fatal  defect  in  the  form  of  the  motion,  in  order  that  they  may  so 
remedy  it  as  to  place  the  question  in  a  form  in  which  it  may  be  reviewed  here- 
after, if  it  should  become  necessary.     The  motion  is  in  these  words  : 

In  the  Supreme  Court  of  the  District  of  Columbia.  The  United  States  vs» 
John  H.  Surratt.     Indictment,  murder. 

"And  now,  at  this  day,  to  wit,  on  the  10th  day  of  June,  1867,  came  the  United 
States  and  the  said  John  H.  Surratt,  by  their  respective  attorneys,  and  the 
jurors  of  the  jury  empanelled  and  summoned  also  come,  and  thereupon  the  said 
United  States,  by  their  attorneys,  challenged  the  array  \)f  the  said  panel,  be- 
cause he  saith  that  the  said  jurors  composing  said  panel  were  not  drawn  accord 
iDg  to  law,  and  that  the  names  from  which  said  jurors  were  drawn  were  not 
drawn  according  to  law ;  whereupon  he  prays  for  judgment,  and  that  said  panel 
may  be  quashed." 

Now,  if  the  court  please,  the  facts  upon  which  these  propositions  rest,  must 
be  stated  in  the  motion.  They  are  traversable,  and  upon  them  an  issue  may 
be  made.  When  the  facts  are  presented,  the  opposite  party  may  either  take 
issue  or  demur. 

I  rise,  therefore,  for  the  purpose  of  calling  the  attention  of  my  brethren  on 
the  Either  side  to  the  form  of  their  proceeding,  and  to  suggest  to  them  that  it  be 
BO  amended  as  to  set  out  the  facts  upon  which  they  rely  for  the  court  to  pass 
npon  the  facts  as  set  forth  in  the  motion  or  plea.  I  have  looked  into  the  English 
precedents  and  those  of  this  country,  and  I  think  I  state  the  law  with  precision, 
that  the  facts  upon  which  they  rely,  showing  the  grounds  upon  which  they 
appeal  to  the  judgment  of  the  court  to  set  aside  the  panel,  must  bo  stated  upon 
record.  And  that  is  not  supplied  by  the  affidavit,  for  we  could  neither  take 
bsue  upon  the  affidavit  which  they  have  presented,  nor  could  we  demur ;  and 
it  is  the  right  of  the  opposite  party  to  demur  or  take  issue,  as  they  see  fit.  I 
refer  your  honor  to  I  Archibold*s  Criminal  Practice,  p.  545,  on  this  point.  On 
p.  547,  is  this  note. 

**  The  challenge  to  the  array  must  be  in  writing.     It  may  be  in   this  form  : 

•  And  now,  on  this  day,  to  wit :  on ,  come  as  well  the  aforesaid  J.  S.  as  the 

aforesaid  J.  N.,  by  their  respective  attorneys,  and  the  jurors  of  the  jury  impan- 
nelled,  being  summoned,  also  come ;  and  thereupon,  the  said  J.  N.  challengeth  the 
array  of  the  said  panel,  because,  he  saith,  [here  set  forth  the  matter  of  challenge 
with  certainty  and  precision,]  and  this  he  is  ready  to  verify.  Wherefore,  he 
prayeth  judgment,  and  that  the  said  panel  may  be  quashed.'  '| 

Then  follows  a  long  note,  in  which  this  whole  case  is  presented,  showing  that 
it  is  absolutely  necessary  in  order  to  make  an  issue  upon  which  the  court  may 
determine  whether  the  proceedings  have  been  strictly  in  accordance  with  the  law 
or  not,  that  the  facts  shall  be  set  forth  in  the  motion. 

Mr.  PiBBRBPONT.  The  learned  district  attorney  is  not  now  in  court,  but  will 
be  here  presently.  I  quite  agree  with  my  learned  friend  that  the  facts  must  be 
brought  before  the  court  upon  which  they  are  to  determine  the  question.  It  is 
upon  the  facta  and  conclusions  of  law  that  the  question  is  to  be  determined. 
The  only  point  now  is  as  to  the  mode  by  which  the  facts  shall  be  brought  before 


16  TRIAL   OF    JOHN   H.   SURRATT. 

your  honor.  Thore  is  no  doubt  but  in  an  ordinary  suit  at  law,  where  the  object 
is  to  get  it  in  such  shape  that  a  demurrer  will  lie,  the  practice  is  to  set  out,  as  my 
friend  has  suggested,  the  evidence  for  the  purpose  of  raising  a  demurrer.  Whether 
the  practice  in  this  court  is  such  that  your  honor  will  require  the  evidence  to  be 
set  out  in  the  motion,  or  brought  before  you  by  affidavit,  as  has  been  done  in 
this  case,  I  have  no  knowledge,  nor  do  I  deem  it  of  importance  except  to  con- 
form to  the  practice  which  is  usual  in  such  cases.  I  do  not  very  well  see  ho# 
it  can  make  any  possible  difference  whether  the  affidavit  is  attached  to  the  motion 
or  be  not  pinned  to  it. 

Mr.  Bradley.  My  suggestion  was  that  the  substance  of  the  affidavit  should 
be  incorporated  in  the  motion.  I  say  that  the  facts  relied  upon  must  be  incor- 
porated into  the  motion  to  enable  us  to  take  issue. 

Mr.  PiERREPONT.  It  is  Certainly  the  same  thing;  it  makes  no  difference  how 
you  put  the  affidavit  in,  whether  you  write  it  over  again  or  attach  this  paper  to 
the  motion.  It  is  the  substance,  not  the  form,  to  which  we  arc  directing  the  at- 
tention of  the  court  ;  and  there  is  no  difficulty  in  getting  at  what  your  honor  may 
think  is  the  proper  form.  I  quite  agree  that  the  substance  is  the  fact,  and  the 
fact  is  to  be  ascertained  in  such  mode  as  your  honor  may  think  is  the  correct 
mode.  As  I  have  said,  I  am  not  familiar  with  the  practice  of  this  court.  The 
assistant  district  attorney  is  present,  and  may  perhaps  suggest  what  it  is  in  this 
respect.  I  dimply  wish  that  whatever  is  the  proper  and  usual  mode  of  getting 
at  the  fact  shall  be  followed. 

Mr.  Wilson.  Tour  honor  will  observe  that  the  form  given  in  the  authority 
quoted  by  Mr.  Bradley  has  been  followed  in  this  case.  The  requirement  there 
is  that  the  matter  of  challenge  should  be  set  forth  with  certainty  and  precision. 
That  is  the  requirement,  and  if  there  is  any  other  requirement  more  specific  than 
that,  I  have  been  unable  to  find  it.  If  this  motion  does  set  forth  the  matter  of 
challenge  with  certainty  and  precision,  it  complies  with  the  requirements  laid 
down  in  the  text-books.  It  is,  however,  a  question  for  your  honor  to  passupouf 
and  if,  upon  inspection  of  this  motion,  your  honor  is  of  opinion  it  does  not  specify 
with  certainty  the  cause  of  challenge,  we  will,  of  course,  in  accordance  with 'the 
suggestion  of  your  honor,  amend  it. 

Mr.  BiUDLEV.  If  my  brethren  will  show  me  how  we  can  plead  or  take  issue 
upon  the  motion  in  its  present  form,  they  will  relieve  me  of  the  difficulty  under 
which  I  am  laboring.  If  they  will  show  me  how  we  can  plcdd  to  an  affidavit 
annexed  to  a  motion,  I  shall  be  equally  pleased  ;  but  until  they  show  me  some 
form  of  plea  by  which  we  can  put  in  issue  the  fact  upon  which  the  law  is  to 
rest,  I  must  say  that  under  the  practice  of  any  court  that  I  ever  heard  of  this  is 
a  novel  proceeding  to  me.  To  aver  that  a  thing  is  contrary  to  law  and  fail  to 
state  the  facts  upon  which  the  motion,  or  application,  or  plea,  or  whatever  it 
may  be  called,  is  based,  is,  I  confess,  a  novel  proceeding  to  me. 

Mr.  PiERREPONT.  I  do  uot  understand  the  motion  to  be  a  plea  in  any  sense 
in  which  that  term  is  used.  I  understand  the  motion  to  be  addressed  to  the  dis- 
cretion and  judgment  of  the  court,  and  when  the  facts  on  the  motion  are  brought 
before  the  Court  on  the  one  side,  they  may  be  denied  on  the  other.  If  one  side 
uses  an  affidavit  as  a  means  of  enlightening  your  honor  as  to  the  facts  upon 
which  tiiey  base  the  motion,  the  other  side  may  use  an  affidavit  for  the  purpose 
of  showing  that  the  facts  relied  upon  are  not  true ;  or  they  may,  if  the  court  so 
direct,  bring  witnesses  for  that  purpose.  I  do  not  understand  that  in  the  motion, 
before  the  court  the  forms  of  pleading  are  to  be  complied  with  in  the  same  man- 
ner as  in  an  action  at  law.     I  am  not  aware  that  such  is  the  practice. 

Mr.  Bradley.  I  wish  to  ask  my  learned  friend  whether,  in  such  a  proceeding 
as  this,  the  opposite  party  is  entitled  to  an  issue  on  the  question  presented? 

Mr.  Pierrepont.  Undoubtedly. 

Mr.  Bradley.  Then  I  ask  how  can  they  have  an  issue  upon  a  motion  of  this 
sort  which  was  that  a  proceeding  is  not  in  accordance  with  law,  without  setting 
out  the  facts  upon  which  the  motion  is  based  ? 


TRIAL  OP   JOHN   H.    8UREATT.  17 

Mr.  PiBRRBPONT.  Precisely  as  in  all  other  cases.     The  motion  is  made,  and 
the  affidavit  upon  which  it  is  based  is  read.     The  other  side  presents  an  issue 
by  presenting  other  affidavits  or  other  evidence  and  then  the  law  arises  upon 
the  facts  as  presented. 
Mr.  Bradlbv.  I  mean  in  an  issne  to  be  tried  by  triers. 
Mr.  PiBRRBPONT.  I  mean  an  issue  to  be  tried  by  the  court. 
llie  Court.    It  would  seem  from  this  note  of  Mr.  Woodeson's  that  there  is' 
quite  as  much  formality  to  be  observed  in  motions  of  this  sort  as  in  the  pleadings 
in  any  cause.    I  read  from  the  note  referred  to  by  Mr.  Bradley  in  first  Archibold, 
"  As  Sir  James  Burrow  has  not  given  the  record  at  length,  I  have  set  down  the 
form  of  these  challenges  (which  is  not  of  every  day's  experience)  from  my  man- 
uscript precedents,  and  thereupon  the  said  S.  B.  prayeth  judgment  of  the  panel 
aforesaid,  because  he  says  that  the  said  panel  was  arrayed  and  made  by  J.  C. 
tnd  J.  D.,  sheriffs  of  the  said  city  of  Chester,  and  that  the  said  J.  C.and  J.  D. 
were  at  the  time  of  the  making  of  the  panel  aforesaid,  and  continually,  from 
thenceforth,  hitherto  have  been,  and  still  are  citizens  and  freemen  of  the  said 
eitr  of  Chester ;  and  this  the  said  S.  B.  is  ready  to  verify ;  wherefore  he  prays 
judgment,  and  that  the  panel  aforesaid  may  be  quashed.     And  the  said  P.  E. 
and  H.  H.  say  that  the  matter  in  the  aforesaid  challenge  to  the  array  of  the 
uid  panel  contained,  is  not  sufficient  in  law  to  quash  the  array  of  the  said 
panel ;  and  this  they  are  ready  to  verify  ;  wherefore  they  pray  judgment,  and 
that  the  array  of  the  panel  may  be  allowed  by  the  court  here.     And  the  said 
8.  saith,  for  that  he  nath  above  alleged  a  sufficient  challenge  to  quash  the 
irniy  of  the  panel  aforesaid,  which  he  is  ready  to  verify,  which  said  challenge 
the  said  P.  and  H.  do  not,  nor  doth  either  of  them,  deny,  nor  to   the  same  in 
any  wise  answer,  but  do,  and  each  of  them  doth,  altogether  refuse  to  admit  that 
arerment;  he  and  the  said  S.  prays  judgment,  and  that  the  array  of  that  panel 
may  be  quashed." 

It  would  look  to  me,  if  we  are  to  be  guided  by  these  precedents,  as  if  the 
fiiets  and  not  the  law  should  be  set  out  in  this  motion,  and  the  conclusions 
of  law  are  to  be  drawn  from  the  facts  as  set  forth. 

Mr.  Bradlbv.  Now,  if  your  honor  please,  as  we  are  exceedingly  anxious 
on  both  sides  to  bring  this  case  to  a  hearing  as  soon  as  possible,  I  submit  to  the 
gentlemen  on  the  other  side,  that  they  incorporate  substantially  the  facts  set 
forth  in  the  affidavit  of  Mr.  Douglass  in  their  motion,  and  then  we  will  be 
resdj  to  proceed.  ♦ 

Mr.  PiBRRBPONT.    We  are  quite  ready  to  do  that. 

Mr.  Bradlbv.     I  have  been  informed  by  Mr.  Douglass  that  he  desires  to 
amend  a  single  statement  in  his  affidavit.     I  do  not  know  that  it  is  in  any  im- 
portant particular,  but  I  suggest  that  he  have  permission  to  make  his  statement 
to  the  court  now. 
The  Court.    He  may  do  so. 

Mr.  8.  £.  Douglass  then  came  into  court  and  made  the  following  statement: 
I  wish  merely  to  say  that  when  I  spoke  of  drawing  the  jurors  from  the  box, 
it  was  always  done  in  presence  of  Mr.  Meigs,  the  clerk  of  the  court. 

The  Court.  You  state  in  your  affidavit  which  was  filed  yesterday  morning 
ind  made  the  ground  for  challengiug  the  array,  among  other  things,  that  this 
jury  DOW  in  court  was  drawn  by  the  clerk  of  Georgetown,  without  stating  that  it 
vasdrawn  in  presence  of  anybody  ;  and  you  now  wish  to  interpolate  there  that  it 
was  done  by  him  in  the  presence  of  the  clerk  of  the  supreme  court  of  this  district. 
Witness.  Yes,  sir,  and  in  the  presence  of  the  clerk  of  the  levy  court  of 
the  county  and  of  myself  as  register  of  this  city. 

Mr.  Bradlbv.     I  will  also  state  that  I  have  looked  at  the  original  record  and 
Att  the  head  of  the  certificate  is  in  the  handwriting  of  Return  J.  Meigs,  and 
[      thst  the  names  of  the  jurors  are  in  the  handwriting  of  Mr.  Williams,  a  clerk 
2 


18  TRIAL   OP  JOHN   H.   SUBRATT. 

in  hi8  office,  and  that  it  is  signed  by  Mr.  Douglass  as  register,  and  by  the  clerk 
of  Georgetown,  and  the  clerk  of  the  levy  court.  I  suggest,  if  there  be  no  ob- 
jection, that  the  correction  now  made  by  Mr.  Douglass  be  entered  in  the  affidavit. 

Mr.  PiERREPONT.     We  have  no  objection. 

The  Court.     It  will  be  so  entered. 

Mr.  Bradley.  The  motion  now  having  assumed  a  shape  in  which  we  can 
plead,  we  are  ready  to  do  so. 

Mr.  Bradley  thereupon  entered  the  following  plea : 
United  States,  ^ 

vs,  >  In  the  criminal  court  of  the  District  of  Columbia,  No.  — 

John  H.  Surratt.  3 

And  thereupon  the  defendant  saith  the  said  motion  is  bad  in  law  and  in  sub- 
stance. The  facts  stated  do  not  constitute  any  ground  in  law  for  a  challenge 
of  the  array. 

BRADLEY  &  MERRICK, 

For  Defendant. 

Mr.  PiERREPONT.     "We  join  in-  the  demurrer. 

Mr.  Merrick.  When  the  motion  was  made  on  yesterday,  the  high  respect 
that  I  entertained  for  the  learned  counsel  upon  the  other  side  induced  me  to  ap- 
prehend that  it  involved  a  question  of  some  difficulty,  especially  in  view  of  the 
assurance,  which  I  was  exceedingly  glad  to  hear  given  by  the  United  States  dis- 
trict attorney,  that  the  motion  was  not  for  the  purpose  of  delay,  but  upon  an  exam- 
ination of  the  question  my  apprehension  of  any  difficulty  involved  in  it  as  a 
legal  proposition  was  speedily  removed,  and  I  beg  to  suggest  to  my  learned 
brothers  upon  the  other  side,  and  your  honor,  that  if  there  is  anything  in  the 
motion,  and  it  should  prevail  as  a  valid  objection  to  a  petit  jury,  the  same  ob- 
jection will  apply  to  the  grand  jury  that  found  the  indictment,  and  on  the  deci- 
sion of  your  honor,  should  it  be  to  sustain  the  ground  of  challenge  to  the  petit 
jury,  we  may  deem  it  expedient  to  change  the  plea  of  not  guilty  and  to  plead 
specially  to  the  indictment.  It  is  therefore,  in  point  of  substance,  as  to  the  re- 
sult not  so  very  material  to  the  prisoner,  for  the  success  of  the  motion  of  my 
learned  friends  on  the  other  side  may  put  him  at  large.  It  is  somewhat 
remarkable  that  the  objection  now  presented  to  the  regularity  of  the  manner  in 
which  this  jury  was  drawn  should  be  presented  for  the  first  time  at  this  late  day. 
Since  the  pass^e  of  the  act  of  1862,  as  Mr.  Douglass  tells  us,  the  jurors  have 
been  uniformly  drawn,  and  the  lists  uniformly  prepared  in  the  same  manner  in 
which  the  list  of  this  jury  was  prepared,  and  in  the  same  manner  this  jury  was 
drawn  ;  and  if  this  jury  is  illegally  constituted,  and  not  authorized  to  return  a 
verdict,  your  honor  has  been  dealing  somewhat  inconsiderately  with  the  lives 
and  liberties  of  the  citizens  of  this  country  ever  since  1863,  when  your  honor 
came  upon  the  bench.  You  have  hung  one  man  and  sentenced  scores  to  the 
penitentiary,  and  you  are  now  to  be  gratified  with  the  intelligence  that  in  all 
these  acts  in  the  taking  of  human  life  you  were  guilty  of  simply  killing,  and  in 
all  these  adjudications  inflicting  the  penalty  of  incarceration  you  have  pronounced 
upon  offenders,  you  are  guilty  of  participation  in  the  act  of  false  imprisonment 
A  pleasing  reflection  to  your  honor,  and  a  matter  for  serious  consideration  for  the 
jurors  who  participated  with  you  in  these  crimes.  But  I  apprehend  there  is  no 
such  result  following  from  a  just  construction  of  this  statute,  and  I  shall  very 
briefly  submit  to  your  honor  the  views  that  have  suggested  themselves  to  me. 

The  first  question  that  arises  is  upon  the  construction  of  the  statute.  My 
learned  brothers  upon  the  other  side  contend  that  the  selection  of  the  names  that 
are  to  be  deposited  in  the  jury  box  is  a  duty  devolving  by  the  law  upon  the 
register  of  Washington  city,  the  clerk  of  Georgetown,  and  the  clerk  of  the  levy 
court  of  the  county,  and  that  this  duty  must  be  performed  by  all  three  conjointly, 
and  that  a  part  of  this  duty  having  been  performed  by  one  of  the  three,  the  duty 


TRIAL   OF  JOHN   H.   8URBATT.  19 

was  illegally  performed,  and  the  conclusion  of  that  duty  are  null  and  void. 
Tour  honor  will  observe  that  the  first  section  of  the  act  provides :  "That  it  shall 
be  the  duty  of  the  register  of  Washington  city,  and  of  the  respective  clerks  of 
the  city  of  Georgetown  and  the  levy  court  of  Washington  county,  in  the  District 
of  Columbia,  within  one  month  after  the  passage  of  this  act,  and  on  or  before  the 
first  day  of  February  in  each  year  thereafter,  to  make  a  list  of  such  of  the  white 
male  citizens,  tax-payers,  residing  within  their  respective  jurisdictions  as  they 
shall  judge  best  qualified  to  serve  as  jurors  in  the  courts  of  said  District." 

This  requirement  of  the  law  is  addressed  to  these  officials  respectively.  The 
register  of  Washington  is  to  make  a  list  of  such  of  the  white  male  citizens,  tax- 
payers, as  he  thinks  best  qualified  to  serve  as  jurors.  So  far  as  the  making  of  the 
list  itself  in  the  first  instance  is  concerned,  it  cannot  be  pretended  that  any  part 
of  the  duty  in  regard  to  it  has  devolved  upon  any  one  else  than  the  register  as 
to  the  list  of  Washington,  the  clerk  of  Georgetown  as  to  the  list  for  Georgetown, 
and  the  clerk  of  the  levy  court  as  to  the  list  for  the  county,  and  in  the  prepara- 
tion of  that  list  there  is  a  discretionary  power  left  with  these  several  officers  to 
be  exercised  by  each  severally,  independent  of  the  other  within  the  territory 
over  which  the  law  requires  him  to  perform  his  duty.  The  register  of  Wash- 
ington has  to  select  from  the  white  male  citizens  of  Washington,  tax-payers,  such 
persons  as  he  may  think  in  his  judgment  best  qualified.  Your  honor  will  ob- 
serve that  the  law  does  not  say  that  he  shall  select  all  that  are  qualified.  It 
does  not  say  what  proportion  of  those  that  are  qualified  he  shall  select.  It  does 
not  say  how  many  shall  constitute  his  list,  but  it  provides  that  he  shall  make  a 
Hst  of  those  he  deems  best  qualified ;  and  in  the  execution  of  the  duty  imposed 
by  this  law  he  is  required  to  leave  out  some,  because  he  cannot  select  those  who 
are  best  qualified,  without  leaving  out  those  who  are  more  indifferently  quali- 
fied.    So  with  the  clerk  of  Georgetown — so  with  the  clerk  of  the  levy  court.     ' 

In  this  first  section,  then,  there  is  no  pretence,  there  is  no  ground  to  maintain  that 
the  duty  imposed  upon  these  officers  is  to  be  performed  by  them  conjointly.  *  The 
second  section  provides  "that  the  officers  aforesaid  shall  select  from  the  list  of 
the  raster  of  Washington  the  names  of  four  hundred  persons ;  from  that  of  the  clerk 
of  Georgetown  eighty  persons,  and  from  that  of  the  clerk  of  the  levy  court  forty 
persons,  which  proportion  after  the  year  1863  may  be  varied  from  year  to  year," 
fee  My  learned  brethren,  while  they  will  concede,  and  must  concede  the  posi- 
tion advanced  in  regard  to  the  meaning  of  the  first  section,  contend  that  the 
second  section,  however,  imposed  the  duty  of  selecting  from  the  list  prepared  in 
obedience  to  the  first  section  upon  the  three  officers  conjointly.  They  admit, 
and  must  admit,  that  each  officer  must  prepare  his  own  list,  but  they  say  that 
after  the  list  is  so  prepared  by  each  officer  severally,  the  three  are  to  meet 
together  and  conjointly  select  the  number  required,  from  the  list  so  prepared.  I 
sobmit  to  your  honor  that  the  same  construction  which  applies  to  the  first  section 
must  also  apply  to  the  second ;  that  the  clear  and  distinct  language  of  the  first, 
aids  in  relieving  the  apparent  obscurity  of  the  second,  and  the  several  duty 
designated  to  be  performed  by  these  officers  severally  in  the  first  section,  re- 
mains a  several  duty  to  be  performed  by  them  severally  under  the  second  section. 
Each  officer  has  to  select  from  the  list  he  prepare  the  number  of  names  he  is  re- 
quired to  have  drawn  from  each  list,  and  I  submit  to  your  honor,  that  the 
other  officers — the  clerks  of  Georgetown  and  of  the  levy  court — have  nothing 
to  do  with  the  selection  to  be  made  from  the  list  prepared  by  the  register  of 
Washington.  The  law  has  selected  three  officers  of  three  distinct  corporations ; 
the  corporations  of  Washington,  Georgetown,  and  the  county  are  distinct. 
The  law  has  selected  these  three  officers,  and  these  three  distinct  corporations, 
to  perform  certain  duties  within  their  corporate  limits,  and  relating  to  the  cor- 
porators. It  has  imposed  the  duty  upon  these  officers  because  they  are  pre- 
nuned  to  know  better  than  anybody  else  of  the  qualifications  and  character  of 
tke  eorporators  among  whom  they  live,  and  it  would  be  a  most  remarkable 


20  TRIAL   OF   JOHN  H.   SURRATT. 

thing  if  the  law  should  require  an  officer  of  the  corporation  of  Washington  to 
enter  into  the  corporation  of  Georgetown  and  perform  a  duty  of  this  character 
in  regard  to  the  corporators  of  Georgetown.  It  would  be  a  remarkable  thing  if 
the  law  should  require  an  officer  of  the  corporation  of  Washington,  about 
whom  and  about  whose  official  position  there  is  nothing  to  justify  the  presumption 
that  he  is  acquainted  with  the  qualifications  and  character  of  the  citizens  of  the^ 
county,  to  go  into  the  county  and  make  from  among  its  citizens  a  selection  of  a 
portion  of  them  who  are  to  perform  the  high  and  responsible  duties  of  jurors  ; 
but  it  would  be  in  perfect  accordance  with  reason,  common  sense,  justice,  and 
law,  to  require  the  clerk  of  the  levy  court  of  Washington  county,  who  lives  in 
the  county,  is  familiar  with  the  corporators  of  the  county,  to  select  from  among 
those  corporators,  the  persons  who  are  to  perform  this  delicate  office,  and  it  is  to 
be  presumed  from  the  relation  in  which  these  officers  stand,  that  one  can  in  no 
way  aid  or  assist  the  other.  The  reason  why  they  are  brought  together  is,  that 
in  the  particular  of  the  jury,  the  jury  is  to  constitue  the  jury  for  the  three  cor- 
porations, but  in  order  that  it  should  be  wisely  and  judiciously  selected,  it  is  to 
DC  selected  by  the  men  best  competent  to  make  it,  most  likely  to  be  familiar  with 
the  people  among  whom  the  selection  is  required  to  be  made — by  the  officer  of 
that  particular  corporation. 

But,  your  honor,  it  is  not  necessary  that  in  this  case  I  should  take  this  ex- 
treme position  in  the  construction  of  the  law.  My  second  position  is,  that  the 
three  officers,  if  the  construction  of  my  learned  brethren  be  correct,  did  con- 
lointly  perform  the  duty  of  selecting  from  these  lists.  On  yesterday,  when  it 
became  apparent  from  the  statement  of  Mr.  Douglass,  made  in  addition  to  his 
affidavit,  that  that  affidavit  was  not  entirely  accurate,  and  that  when  the  juror 
names  were  deposited  in  the  jury  box,  all  three  of  these  officers  were  present, 
I  objected  to  the  further  inquiry  as  to  what  particular  judgment  was  exercised 
by  t\Hi  one  or  the  other  in  the  selection  of  the  names  so  deposited.  My  learned 
brethren  on  the  other  side  suggested  to  me  that  the  argument  or  view  I  then  ex- 
pressed was  applicable  to  the  main  question,  and  should  be  expressed  as  an 
argument  upon  the  main  question,  and  not  upon  the  question  of  evidence.  What- 
ever might  be  the  view  of  this  statute  when  that  fact  was  developed,  it  struck  me 
instantly  that  my  learned  brethren  on  the  other  side  would  see  at  once  there 
was  no  ground  upon  which  to  rest  their  motion.  1  supposed,  although  I  had 
never  examined  the  question  at  all,  that  when  Mr.  Douglass  stated  these  three 
officers  were  present  at  the  time,  my  learned  brethren  on  the  other  side  had  been 
misinformed  by  the  affidavit  which  they  had,  and  that  when  the  fact  was  de- 
veloped that  all  these  officers  were  present  acting  together  in  depositing  names 
in  the  jury  box,  it  was  information  that  would  satisfy  them  that  there  was  no 
ground  for  their  motion.  My  reason  for  so  supposing  was  this  familiar  principle, 
that  where  three  individuals  are  required  by  law  to  perform  a  quasi  judicial 
duty,  or  a  discretionary  duty,  and  the  duty  is  performed,  you  cannot  go  back 
beyond  the  performance  of  the  duty  to  inquire  how  far  it  was  performed  by  each 
of  the  three.  Your  inquiry  is  stopped  the  very  instant  the  fact  is  developed 
that  the  three  were  present  ^nd  participated  in  the  duty  imposed  upon  them. 
How  far  it  appears  of  what  share  he  had,  how  far  the  judgment  of  one  guided 
the  other,  and  what  passed  in  consultation,  are  not  matters  of  inquiry  by  your 
honor,  lliis  board,  if  board  you  call  it,  have  rights  as  well  as  courts.  They 
arc  entitled  to  legal  presumption  as  well  as  the  court,  and  it  is  the  first  time  in 
my  professional  experience,  that  I  have  ever  seen  the  attempt  made  to  inquire 
how  far  one  of  the  several  parties  aided  in  the  performance  of  the  duty  that  was 
imposed  upon  them  conjointly  when  it  was  shown  that  all  were  present*  The 
statement  of  the  question  is  so  plain  that  argument  would  only  tend  to  obscure. 

I  suggest  to  your  honor,  as  a  third  consideration,  that  we  are  not  now  inquiring 
whether  these  parties  (these  officers  of  the  law)  performed  their  duty  strictly  in 
accordance  with  requirements  of  the  law,  bat  we  are  inquiring  bow  far  failure 


TRUL   OP   JOHN   H.   SURRATT.  21 

to  comply  with  tbeee  requirements  vitiates  what  was  done — two  very  distinct 
questions ;  and  I  maintain  that  even  if  this  officer  failed  to  comply  in  every  par- 
ticular with  the  strict  requirements  of  the  law,  and  yet  the  duty  was  performed, 
that  while  they  may  be  liable  for  a  failure  to  obey  and  observe  the  law,  the  act 
they  have  done  is  a  valid  and  binding  act.  The  statute  nowhere  declares  that 
the  panel  shall  be  void.  The  statute  nowhere  declares  that  their  action  shall  be 
\mgatory.  It  directs  certain  things  to  be  done,  and  is  what  is  known  to  the 
law  aa  a  directory  statute.  As  your  honor  is  aware,  the  courts  have  gone  to  a 
great  extent  in  construing  these  directory  requirements  of  the  law,  with  a  view 
to  uphold  what  may  have  been  done  under  the  law.  I  refer  the  court  to  Sedg- 
wick on  Statutory  Law,  from  page  371  to  page  377,  for  a  very  full  collectiun 
of  cases  bearing  upon  this  point.  I  cannot  gather  from  the  case  decided 
any  fixed  general  principle,  sufficiently  clear  and  distinct,  and  state  to  your 
honor  without  reference  to  special  cases,  other  than  this,  that  whenever  the  court 
can  construe  the  law  as  directory,  whenever  they  can  uphold  the  validity  of 
what  is  done  under  the  law,  although  not  done  in  conformity  to  the  law,  it  will 
construe  the  statute  to  be  directory.  And  it  has  upheld  the  validity  of  what 
has  been  done,  even  while  punishing  the  officer  for  a  failure  to  comply  with  the 
mandates  of  the  law.     I  read  from  page  377. 

**  By  a  paving  act,  commissioners  were  empowered  to  enter  into  contracts  for  the 
work,  provided  that  no  contract  should  be  made  for  any  longer  term  than  three 
jears ;  and  the  act  then  went  on  to  declare  that  ten  days'  notice  of  proposals 
should  be  given ;  that  the  contracts  should  specify  the  work,  the  price,  and  the 
time  of  completion,  and  should  be  signed  by  at  least  three  of  the  commissioner:?, 
and  that  copies  should  be  kept.  It  was  held  that  the  proviso  as  to  the  term  of 
the  contract  was  imperative,  but  that  all  the  other  clauses  were  merely  direc- 
tory, (Tindal,  C.  J.,  saying :  "  The  act  says  that  the  contract  shall  be  signed 
by  the  commissioners,  &c. ;  it  does  not  say  that  they  shall  be  void  unless  so 
signed,")  and  that  a  contract  was  good  without  them.  Here  it  is  obvious  that 
provisions  inserted  by  the  legislature  for  the  protection  of  tax-payers,  were  nul- 
lified by  a  judicial  decision. 

*  ♦  *  *  *  * 

"  In  Massachusetts,  where  a  statute  required  the  assessors  to  assess  a  tax  within 
thirty  days  after  the  vote  of  the  tax  being  certified  to  them,  it  was  held  that  the 
naming  the  time  for  the  assessment  was  to  be  considered  as  directory  to  the  as 
Bessors,  and  not  as  a  limitation  of  their  authority.  So  in  New  York,  where  a 
school- tax  was  voted  at  a  meeting  of  which  no  notice  was  given  as  required  by 
statute,  and  afterwards  levied,  the  act  was  held  to  be  directory  merely,  and  the 
tax  to  be  well  laid.  A  statute  requiring  a  tax  to  be  assessed,  and  the  tax-list 
therefore  to  be  made  out  by  the  trustees,  and  a  proper  warrant  attached  thereto 
within  thirty  days  after  the  district  meeting  in  which  the  tax  shall  have  been 
voted,  is  merely  directory  as  to  time. 

*  *  ♦  •  *  • 

"  Indeed,  the  rule  has  been  carried  so  far  as  to  hold  where  a  statute  directed 
the  vote  of  the  common  council  of  the  city  of  New  York  to  be  taken  by  ayes 
and  nays,  that  the  provision  is  merely  directory.  And,  again,  it  has  been  de- 
cided that  the  provision  of  a  statute  requiring  inspectors  of  corporate  elections 
to  take  an  oath  is  only  directory.  The  rule  has  also  been  applied  to  popular 
Sections ;  an  election  has  been  held  valid,  though  the  inspectors  were  sworn 
not  on  the  Bible  but  on  some  other  book,  though  they  kept  open  the  polls  after 
the  time  fixed  by  law,  and  committed  other  minor  irregularities." 

This,  then,  will  show  to  your  honor  the  disposition  of  the  courts  to  uphold  the 
validity  of  what  may  have  been  done  by  an  officer  even  where  he  has  not  strictly 
complied  with  the  reauirements  of  the  law.  The  requirements  of  every  law  are 
maQdatory  and  should  be  obeyed,  and  he  who  disregards  them  must  disregard 
them  at  hla  peril.   But  where  the  ^w  itself  does  not  declare  that  to  be  void  which 


22  TRIAL   OP   JOHN   H.   SURRATT. 

he  is  required  to  do,  and  has  not  done,  in  stnct  accordance  with  the  requirements 
of  the  statute,  and  the  doing  of  the  thing  affects  other  parties  and  the  public 
interests.  The  law  will  uphold  the  act  as  valid,  but  may  punish  the  officer  as 
derelict  in  his  duty. 

The  general  principle  that  statutory  provisions  may,  in  certain  cases,  be  treated 
as  purely  directory  has  been  recognized  in  all  the  States."   In  regard  to  capital 
trials  for  murder  in  Michigan,  a  statute,  requiring  a  circuit  judge  to  assign  a  day ' 
for  the  trial,  has  been  held  clearly  directory  so  far  as  time  is  concerned.*' 

In  this  case  the  statute  imperatively  required  that  a  day  should  be  assigned  for 
the  trial  of  the  capital  cases ;  the  statute  was  made  in  favor  of  the  prisoner,  in 
favor  of  life,  and  yet  the  courts  uphold  the  action  of  one  of  its  officers  acting 
thus  in  a  manifest  disregard  of  this  charitable  and  mandatory  requirement  of  the 
law. 

But  I  do  not  deem  it  necessary,  as  I  stated  in  regard  to  the  first  position,  to 
maintain  the  third  to  the  extent  to  which  I  have  carried  it.  The  second,  as  I 
have  indicated  to  the  court,  is  conclusive  upon  this  subject.  These  men  were 
present  doing  the  act,  and  you  cannot  inquire  into  what  part  was  done  by  one 
and  what  part  by  another.  It  is  their  act.  The  list  of  jurors  was  placed  in  the 
box  by  them,  and  the  certfiicate  is  signed  by  three  men.  They  have  therefore 
ratified  by  their  own  signature  what  was  done;  they  have,  by  their  subsequent 
act,  declared  that  this  box  was  made  up  according  to  law.  Now  I '  ask  my 
learned  brethren  upon  the  other  side  to  answer  me  this  question :  Suppose  three 
men  were  to  meet  together  in  conclave — suppose  the  clerk  of  Georgetown  and  of 
the  levy  court  had  said  to  Mr.  Douglass,  take  your  list  and  make  out  from 
your  list  these  men  from  Washington  that  ought  to  go  in  this  box,  and  he  had 
done  it,  and  conjointly  with  the  others  deposited  the  names  in  the  box,  would 
your  honor  come  into  court  and  say  these  men  had  not  performed  the  duties 
charged  upon  them  as  quasi o^cifil  duties?  Unquestionably  not.  But,  say  ray 
brethren  upon  the  other  side,  he  made  out  no  list.  He  did  make  a  list,  call  it  hy 
what  name  you  please.  He  made  out  four  hundred  names  of  those  he  regarded 
as  best  qualified  in  the  city  of  Washington ;  he  was  not  required  to  make  any 
more.  The  number  of  individuals  who  should  be  upon  that  list  or  who  should 
compose  it  were  matters  exclusively  within  his  own  discretion,  and  when  he 
made  out  four  hundred  names  it  was  an  exercise  of  his  discretion  in  the  selection 
of  men  best  qualified  to  serve  as  jurors. 

But  I  am  consuming  time  unnecessarily,  for  the  case  is  definitely  settled  by 
the  judges  of  England  in  their  unanimous  opinion  in  the  famous  case  of  Daniel 
O'Connell.  I  refer  to  11  Clark  and  Finnelly,  page  167.  Daniel  O'Connell 
being  indicted  of  high  crimes  and  misdemeanors,  applied  his  challenge  to  the 
array  of  jurors,  and  your  honor  will  perceive  that  the  refusal  to  grant  him  the  ben- 
efit of  the  challenge  to  this  array  was  a  very  hard  and  possibly  a  very  harsh  one. 

The  challenge  of  the  defendant,  Daniel  O'Oonnell,  was  as  follows  .  "  And 
the  said  Daniel  0*Connell  thereupon,  in  his  own  proper  person,  challenges  the 
array  of  the  said  panel,  because,  he  says,  that  at  the  special  sessions  heretofore 
holden  in  and  for  the  county  of  the  city  of  Dublin  on  the  14th  of  November, 
1843,  before  the  right  honorable  Frederick  Shaw,  recorder  of  the  said  city,  for 
the  purpose  of  examining  the  list  of  jurors  for  the  said  city  for  the  now  current 
year  1844,  pursuant  to  the  statutable  enactments  in  such  case  made  and  pro- 
vided, the  clerks  of  the  peace  in  and  for  the  said  city  duly  laid  before  the  re- 
corder divers,  to  wit :  Twenty  lists  theretofore  duly  furnished  to  the  clerks  of 
the  peace  by  the  several  collectors  of  grand  jury  cess  within  the  city,  in  that  be- 
half duly  authorized  to  make  such  lists,  containing  or  purporting  to  contain  a 
true  list  of  every  man  residing  within  their  respective  districts." 

Now,  your  honor,  the  law  under  which  this  challenge  was  interposed,  and  ac- 
cording to  the  requirements  by  which  it  was  expected  to  be  made  available,  pro- 
Tided  the  clerks  of  the  peace  for  the  city  of  Dublin  should  lay  before  the  re- 


TRIAL   OP   JOHN   H.   8URBATT.  23 

eorder  certain  lists  which  were  to  be  furnished  to  the  clerks  of  the  peace  by  the 
several  collectors  of  the  grand  jury  cess.  The  lists  were  to  be  made  by  the  col- 
lectors of  persons  qualified  to  act  as  jurors.  The  collectors  having  made  out  the 
fist  were  to  furnish  them  to  the  clerks  of  the  peace,  the  clerks  of  the  peace  were 
to  furnish  them  to  the  recorder,  the  recorder  was  to  certify  to  the  qualification, 
and  from  these  lists  the  jury  book  was  to  be  made  out,  and  from  the  jury  book 
the  sheriff  was  to  collect  the  panel.  This  was  the  law.  Now  the  challenge  set 
forth  what  I  have  read  to  your  honor,  and  goes  on  to  say : 

"  And  that  the  said  several  lists  respectively  were  at  the  special  sessions  duly 
corrected,  allowed,  and  signed  by  the  said  recorder,  pursuant,  &c. ;  and  that 
the  several  persons  whose  names  are  hereinafter  mentioned  were  then  and  there 
adjudged  by  the  recorder  to  have  the  qualifications  hereinafter  named,  and  that 
the  names  of  the  several  persons  were  then  and  there  contained  in  the  said  seve- 
ral lists  so  corrected,  allowed,  and  signed  as  aforesaid." 

Your  honor  will  observe  yon  have  now  got  your  list  from  the  collectors  of  the 
grand  jury  cess  to 'the  clerks  of  the  peace,  from  the  clerks  of  the  peace  to 
the  recorder,  and  your  lists  are  certified  and  approved  by  the  recorder.  He 
goes  on  : 

*'But  that  the  recorder  did  not,  as  by  the  said  statutable  enactments  is  directed, 
eanse  to  be  made  out  from  the  said  several  last-mentioned  lists  one  general  list 
eontainihg  the  names  of  all  persons  whose  qualifications  had  been  so  allowed, 
arranged  according  to  rank  and  property  ;  nor  did  the  recorder  thereupon,  or  at 
all,  deliver  such  general  list  containing  such  names  to  the  clerks  of  the  peace,  to 
be  fairly  copied  by  the  said  clerks  of  the  peace  in  the  same  order  as  by  the  said 
statutable  enactments  is  directed,  but  on  the  contrary  thereof  omitted  so  to  do ; 
and  that  a  certain  paper  writing,  purporting  to  be  a  general  list,  purporting  to 
be  made  out  from  such  several  lists  so  corrected,  allowed,  and  signed  as  afore- 
said, was  illegally  and  fraudulently  made  out  by  some  person  or  persons  un- 
known ;  and  that  the  said  paper  writing,  purporting  to  be  such  general  list  as 
aforesaid,  did  not  contain  the  names  of  all  th(;  persons  whose  qualifications  had 
been  allowed  upon  the  correcting,  allowing,  and  signing  of  said  lists  as  aforesaid 
by  the  recorder,  but  omitted  the  nanies  of  divers,  to  wit,  fifty -nine  persons." 

Following  your  list  then  from  the  collector  of  the  grand  jury  cess  and 
clerks  of  the  peace  to  the  recorder,  and  the  recorder  having,  as  your  honor  ob- 
serves, approved  and  ratified  these  lists,  it  then  appears  that  the  recorder  failed 
to  make  out  a  general  list  and  make  a  copy  of  the  list  which  he  had  approved, 
but  that  some  unknown  party  made  out  a  list  omitting  fifty-nine  names  that 
were  upon  the  lists  approved  by  the  recorder,  and  that  this  had  been  done 
fraudulently  and  illegally. 

"Ajid  the  said  Daniel  O'Connell  further  says  that  the  several  persons  whose 
names  were  so  omitted  from  the  fraudulent  paper  writing,  purporting  to  be  the 
general  list,  were,  at  the  time  of  the  return  of  the  collectors'  lists,  and  at  the 
time  of  the  special  sessions,  and  still  are  severally  residents  within  the  said  city, 
and  were  at  the  several  times,  and  now  are,  duly  qualified  to  be,  and  should 
and  ought  to  have  been  placed  upon  the  general  list ;  and  that  from  the  fraudu- 
lent paper  writing  purporting  to  be  such  general  list  as  aforesaid,  a  certain  book, 
purporting  to  be  the  jurors'  book  of  the  said  city  for  the  current  calendar  year, 
1844,  was  made  up  and  framed." 

Your  honor  will  see  that  the  jury  book  was  formed  from  this  fraudulent  list, 
and  that  on  that  ground  the  challenge  was  interposed.  The  demurrer  was  filed 
eonceding  all  the  foots— conceding  that  the  lists  made  out  had  not  been  made  up  by 
the  recorder,  that  it  had  been  made  up  by  some  person  unknown,  that  it  had  been 
fraudulently  made  up  for  this  case,  and  that  from  the  very  list  thus  fraudulently 
aadenp  the  jurors'  list  had  been  taken,  and  the  jury  had  been  summoned  by  the 
iheriff.  The  court  below  sustained  the  demurrer.  The  case  went  up  to  the  House 
of  Lords,  aad  the  lords  called  upon  the  judges  of  England  for  their  counsel.   The 


24  TRIAL   OF   JOHN   H.   8URBATT. 

judges  of  England  were  unanimous  in  favor  of  the  demurrer,  and  the  lords 
co-operated  with  them.  The  opinion  held  by  Chief  Justice  D.  Tindal,  giving 
the  unanimous  judgment  on  the  part  of  the  judges  will  afford  to  your  honor  an 
easy  and  clear  solution  of  the  difficulty  presented  to  you  here,  while  the  lord 
chancellor  in  giving  his  opinion  coincides  with  Chief  Justice  Tindal,  and  eluci- 
dates the  subject,  as  I  think  your  honor  will  say,  to  your  entire  satisfaction.  I  beg 
leave  to  read  from  a  portion  of  Chief  Justice  Tindal's  opinion.  On  page  232 
your  honor  will  find  the  question  propounded  by  the  lords  and  the  judges.  The 
question  is  this : 

"Is  there  any  sufficient  ground  for  reversing  the  judgment  on  account  of  the 
judgments  of  the  court  overruling  and  disallowing  the  challenges  to  the  array, 
or  any  or  either  of  them,  or  of  the  matters  stated  in  such  challenges  ?" 

On  page  247  Chief  Justice  Tindal  in  his  opinion  says : 

"  The  answer  to  the  sixth  question  (ante,  p.  232)  will  depend  upon  the  princi- 
ple upon  which  the  law  allows  a  challenge  to  the  array  of  a  jury.  The  only 
ground  upon  which  the  challenge  to  the  array  is  allowed  by  the  English  law,  is 
the  unindifferency  or  default  of  the  sheriff.  But  no  want  of  indifferency  in  the 
sheriff,  nor  any  default  in  him  or  his  officers  was  assigned  for  the  cause  of  chal- 
lenge upon  this  occasion. 

"  The  array  of  the  panel  is  challenged  in  this  case  upon  the  ground  that  the 
general  list  from  which  the  jurors'  book  is  made  up,  had  not  been  completed  in 
every  respect  in  conformity  with  the  requisites  of  the  statutes,  but  that,  on  the 
contrary,  the  names  of  fifty-nine  persons  duly  qualified  to  serve  on  the  jury  for 
the  county  of  the  city  of  Dublin,  were  omitted  from  the  general  list,  and 
from  the  special  jurors'  book  of  the  said  county,  but  the  challenge  contains  no 
accusation  against  the  sheriff,  or  any  of  his  subordinate  officers.  The  challenge 
by  each  of  the  defendants  alleges  in  deed,  "  that  a  list,  purporting  to  be  a  gen- 
eral list,  was  illegally  and  fraudulently  made  out,  by  some  person  or  per- 
sons unknown  ;"  and  the  challenge  by  Mr.  Steele  states  further,  *'  that  the 
names  were  left  out  for  the  purpose  and  with  the  intent  of  prejudicing  the  said 
Thomas  Steele  in  this  cause,  by  some  person  or  persons  unknown;"  but  neither 
in  the  one  case  nor  in  the  other  is  the  most  distant  suggestion  that  the  sheriff  is 
in  fault.  The  shei-iff  therefore  being  neither  unindifferent  nor  in  default,  the 
principle  upon  which  the  challenge  to  the  array  is  given  by  law,  does  not  apply 
to  the  present  case.  The  statute  has,  in  fact,  taken  from  the  sheriff  that  duty 
of  selecting  jurymen  which  the  ancient  law  imposed  upon  him,  and  has  substi- 
tuted instead  a  new  machinery  in  the  hands  of  certain  officers,  by  whom  the  list 
is  to  be  prepared  for  the  sheriff's  use." 

I  beg  here  in  this  connection  to  call  your  honor's  attention  to  one  particular 
feature  of  this  opinion  of  the  learned  judge,  reasoning  upon  the  doctrine  that 
the  only  cause  of  challenge  is  unindifferency  or  default  on  the  part  of  the  sheriff. 
My  learned  brother  on  the  other  side  will  see  that  the  sheriff  has  nothing  to  do 
with  the  selection  of  the  jurymen.  The  statute  having  taken  from  the  sheriff 
that  duty  anciently  imposed  upon  him,  and  placed  it  in  the  hands  of  other  offi- 
cers by  whom  the  list  is  to  be  prepared  for  the  sheriff^s  use ;  and  yet,  although 
it  appeared  that  the  list  prepared  by  these  officers  was  substituted  for  another 
improperly  and  fraudulently;  still  the  challenge  was  not  allowed,  because 
the  only  ground  of  challenge  must  be  unindifferency  or  default  on  the  part 
of  the  sheriff.  Here  we  have  a  similar  substitute  of  machinery,  the  statute 
having  taken  from  the  marshal  the  selection  of  tlie  jury  and  placed  it  in 
the  custody  of  other  officers  in  a  manner  very  much  analogous  to  the  law  of 
England.  There  the  assessors  were  to  furnish  the  list  to  the  clerks  of  the  peace, 
the  clerks  of  the  peace  to  the  recorder,  the  recorder  to  make  out  a  clear  list 
the  jury  book,  and  a  copy  of  that  list  to  be  placed  in  the  hands  of  the  sheriff. 
Here  the  clerk  of  Georgetown,  of  the  levy  court,  and  the  register  of  Wash- 
ington are  to  prepare  certain  names  and  put  them  in  a  box,  which  box  is  to  be 


TRIAL   OF  JOHN  H.  SURBATT.  25 

placed  in  cbarge  of  the  clerk  of  the  supreme  court  16  be  sealed  up.  From  that  box 
the  jurors  are  to  be  drawn,  and  return  is  to  be  certified  hy  the  clerk  of  the  crim- 
iEial  court.  The  sheriff  has  nothing  to  do  with  all  this.  There  the  challenge  is 
made  because  the  jury  book  was  not  prepared  in  conformity  to  law ;  here  be- 
cause the  jury  box  was  not  prepared  as  alleged  in  strict  conformity  to  the  law. 
The  two  stand  precisely  alike  so  far  as  the  preparation  of  the  jury  book  there 
and  the  jury  box  here  is  concerned.    The  chief  justice  goes  on  : 

**  If  the  sheriff,  when  the  jurors'  book  was  furnished  to  him,  had  acted  im- 
properly in  selecting  the  names  of  the  jury  from  the  book,  such  misconduct 
would  have  been  a  good  cause  of  challenge  to  ihe  array ;  but  that  which  is 
really  complained  of  is,  that  the  material  of  the  book  out  of  which  the  jury  is 
selected  by  the  sheriff,  and  for  which  the  sheriff  is  not  responsible,  has  been  im- 
properly composed.  It  is  not,  therefore,  a  ground  of  challenge  to  the  array ; 
and  further,  it  is  manifest  that  no  object  or  advantage  could  have  been  gained 
if  the  challenge  had  been  allowed,  for  if  the  challenge  had  been  allowed,  the 
jury  process  woidd  have  been  directed  to  some  other  officer,  who  would  have 
been  obliged  to  choose  his  jury  out  of  the  very  same  special  jurors*  book  as 
that  which  the  sheriff  had  acted  on,  for  no  other  was  in  existence.  The  same 
objection  might  again  be  made  to  the  jury  panel  secondly  returned,  and  so  totics 
quotiety  so  that  the  granting  of  this  challenge  would,  in  effect,  amount  to  the 
preventing  the  case  from  being  brought  to  trial  at  all.  The  very  same  difficulty 
might  occur  in  England,  if,  through  accident,  carelessness,  or  design,  a  single 
jury  list,  directed  to  be  returned  by  the  overseers  of  any  parish  within  the 
county,  were  not  handed  over  to  the  clerk  of  the  peace,  or  if  a  single  name 
should  have  been  omitted  in  any  list  actually  delivered  to  the  clerk  of  the  peace. 
The  jury  book  must  necessarily  in  either  case  be  deficiently  made  up.  But  if 
deficiency  were  allowed  to  be  a  ground  of  challenge  to  the  array,  the  business 
of  every  assize  in  the  kingdom  might  effectually  be  stopped.  That  there  must 
be  some  mode  of  relief  for  an  injury  occasioned  by  such  non-observance  of  the 
directions  of  an  act  of  Parliament,  is  undeniable ;  but  the  only  question  before 
US  is,  whether  it  is  the  ground  of  challenge  to  the  array  ?  and  we  all  agree  in 
thmking  it  is  not,  and  therefore  we  answer  this  question  in  the  negative.'' 

I  will  not  detain  the  court  by  reading  from  the  opinion -of  the  learned  lord 
chancellor,  for  he  pursues  the  same  course  of  reasoning  as  that  pursued  by 
Chief  Justice  Tinaal,  and  coincides  in  the  opinion  I  have  read.     He  says  : 

•*  If  the  sheriff  is  unindifferent,  to  use  the  legal  expression,  if  he  is  not  equal 
between  the  parties,  that  is  a  ground  of  challenge  to  the  array.  If  he  is  guilty 
of  any  default  in  returning  the  jury,  that  also  is  a  ground  for  this  species  of 
challenge.  Those  are  the  only  grounds  of  challenge  to  the  array.  They  are 
of  a  personal  nature,  and  are  confined  to  the  sheriff  or  other  officer,  whoever  he 
may  oe,  by  whom  the  jury  is  returned." 

I  do  not  mean  to  say  there  is  anything  peculiar  in  the  character  of  the  sher- 
iff that  makes  him  specially  liable  in  the  particular  mentioned  in  this  opinion, 
but  it  i»  the  officer  who  makes  return  that  must  be  guilty  of  unindiffereucy  or 
de&nlt ;  but  the  opinion  goes  to  the  extent  that  a  challenge  of  the  array  is  only 
proper  where  there  is  a  default  of  the  officer  who  makes  the  return  of  the  par- 
ticalar  jury,  and  not  of  the  officer  who  selects   the  particular  jury.     There 
ought  to  be,  and  there  is  a  remedy  where  the  jury  book  or  the  jury  box  has  not 
*   been  properly  prepared,  but  it  is  not  a  remedy  by  challenging  the  array.     That 
ranedy  applies  only  where  the  officer  making  the  return  of  the  particular  petit 
JQiy  has  been  guilty  in  selecting  that  particular  jury. 

I  respectfully  submit,  therefore,  that  if  this  case  in  England  is  law,  there  is 
no  difficult  question  before  this  court.    'And  if  it  is  not,  there  is  no  difficult 

Cion,  because,  as  I  have  said,  those  men  were  present  in  the  discharge  of 
duty. 
And  I  further  state,  that  if  cogdizant  of  the  fact  that  there  is  a  defect  in  this 


tllll  :t  .■:z5  h. 


1  r    -  • 

I  -   : .  :•  r 

:L>  L  :-.  I  - 
*\i\.i  ■.:':.  1 
^.•^:  ••  :  r-  .: 

jri-u:-  ^.:.: 

arr  ::.  l:v;:: ,; 

M  .y   :  v:^ 

c-L:*i«i:'.  :  ■ 

iTiO::  :.  rr-:f. 

jary  hi-  br--; 
trial.  :!.r  c-ilrr 

unlr-?  :'..•>  i"rv 
be  tnri.     tiii: 


•s.>i-:\?r  that 

^i  :    ■--::•■-     :  ^"J-*  : 

:  :-:••=:;'?:::  for 

:     -.It  fii:  :-t:  l  ki 

:  i;-ry  i.rJTiror 
.i.r"T.  -br  fany 
ir:.  ni:  01  iht 
"r-ri.     Iris 

■  v'.-:rr  '•f  ihe 
:  1 .:  k-  'wledge 
.:  i  ~>:::«n  lor 

T 1  !•"  r.  "!:.:.■:  '*i  •  "i, .  t^" 

7- :?  ::  :  r'oanded 

'.T    T^     "It  11.?'- '."■!■?        IT    '. 

'.r  ^'-^p'y  upon 
--.. . i-*:ion.ibly 
:i--"l  ;7*ror?— if 
::  •_?  jr>e*cribed 
:  :?  7.:-:  t--cau5e 
L-T..  bn:  simply 
zirn  :h:'^k  ibey 

T 


I  Trr.r!  ^  i"  tr*.  ?.  i  i;. 


1^:-:  ::: :::.:?  ca?e; 

ri?   i.-.y:'!!!!^  else. 

l:'i  "b-V:j:.  It-a-.U  to 
;ifr:.^f.  A::'.  vn:rr:Aining 
■  \''\r  i  "  :ry  *.r*:3«:  wbose 
l  ~/.L :  -:  rr  j;ri  ; .-  :b:s  case, 
.:  \'-:"'tT  ~::-.-i  ::  do  justice 
— i  :«>■■■  -::  ::  a*.2  ordinary 
r.  wi-.^h.  v%l:*v  :  .0  United 
ft  Ays  I  iivr  s:  'kvii  of.  ibcre 
:.:  wL.-i  zitv  i":  disposed  to 


'k'\Vi' 


•n  r.  I  ^L, 

.3 


I  :. 


AVr  r  --&:.v 


"::rs  :'• .:  wr.vr-  .^  jriruiii-i.  ct?:  is  •:: 
:  m  p  \ : .  t'/. r .: .  & r. :  a •.:  : :.  r r  :  •.  rr.;  I :  r -  :^.  s  d 

T'L-t*.  C '■Ti'.'.Vm'Jiz '.    1  H!   .V  l^vS  '.I  t  X».*i*v.l.r., 

*  ?  :  i".  ly  :  m :  ■  i :: v ' '.  -: .;  1-. :  ^  -v  : ::  ^  e:;  i  c : 

■:::-r  :vr:r.  : :  jr'./.s    :;  M  'iid.iy  :>.  x:.  .i 

rd.tv  r/jh:  ::  is    -.liS:: 


mji.mor.'.-.l  b-r.-ro  Si 


:n::::3  :hin  to  add 
::r .- :  ::.  :he  honest 
rrri't'  !y.  up'»a  whiA  the 
:.  ::  jfiivJirs  a:  Lirge, 
f.ii  :.~.  :b  s  c^art,  and  a 
.r.':.s  :*::r  ir'jrosfS  of  the 
'y  ..ivsv'on.ibl'j  whether, 
:hv  :--rm.  ihe  cause  can 
:d  :;7/..fs  a  jurr  in  this 
•.:V:'e  wj--:brr  this  case 


will  be  tried  tor  mwtv  d.ivs  or  nur.v  ve.irs. 


Mr-    PiKRREPO.NT.   M.IV 


L^leasv"  V  .KIT  \\M\  T : 


irr.ed  and   eminent 
ra>  s  suppose  them 


eoontel  ari*e  in  a  solemn,  ra.iniur  :.^  .^i^dross  ::;o  c.-r:.  I  a> 

t^> '  ■"  ■"  have  uo  doub:  ::;;i:  the  uwiiuv.  sr.d  or.::'*:tr»:  gi uileinan  who 

hft*  jR*i  taken  his  seat  is  no:  only  sinocn .  but  i.irr.es:  iu  :he  exireme.  in  his 

dt«tn^  lo  prerftnl  the  sucot^ss  of  this  lu^v.vxi.     The  I  ^rc  -f  :b:\i  sincerity  will 

«p{i4n<nt  wiiru  I  qnoio  the  beirinsiir.;:  of  l-is  sj  tx-oh      He  s.ays  :  "  If  this 

icMi  pic^vail.  then  the  jn*.uid  jviry  iihioh  found  :l.:s  ::-.dic:c:ec:  was  illegal, 

pill*  uiy  tiieiu  at  lar^\" 

V  I  ^upjH%*t\  my  loanu\l  friend  c.\rao  here  :.^  pu:  his  cMvut  at  large, 
't  Mi^BKicK.  By  llio  wrdiol  of  a  jury. 

*  i*isiiRKPf<AT.  If  not.  why  is  ho  hoix  ?     I  oo:o»:vo  :h;\:  he  is  not  here  for 

piitwi?  tlian  to  put  his  client  a:  l,\^:^^     1:  ::.o  r.'.  ::  v.:  :i;a:  wo  have  made, 

ff«vall,k]8  cliont  x*  at  lar^' :  and  yet  Re  talks  .in  tumes;  hour  to  your  hon- 

to  luitOTOtt  douy  thi»  motion,  and  thus  prvveu:  his  client  being  at  large. 


TRIAL   OP  JOHN   H.   8URRATT.  27 

Let  us  see  what  all  tliis  means.  It  is  a  very  extraordinary  spectacle,  truly, 
to  have  a  lawyer,  earnest  in  the  defence  of  his  client,  rising  and  telling  your 
honor,  that  if  the  very  thing  we  ask  is  done  his  client  is  free ;  and  yet  exerting 
himself  with  an  earnestness  and  an  ingenuity  which  is  commendable,  to  prevent 
his  client  from  gaining  his  liberty.  It  is  something  new  in  the  administration 
of  justice.  1  fancy,  your  honor,  that  I  have  a  right  to  infer  either  that  he  is 
not  sincere  in  believing  that  the  success  of  this  motion  would  set  his  client  at 
large,  or  else  he  will  have  to  meet  this  extraordinary  result,  that  he  does  not 
wish  to  have  his  client  at  large. 

Mr.  Merrick.  Will  the  learned  counsel  allow  me  a  moment  ?  I  merely  wish 
to  say  in  reply  to  the  first  suggestion,  which  he  is  now  eliminating,  that  I  desire 
my  client  to  be  set  at  large  by  the  verdict  of  a  jury.  My  judgment  is  that  if 
this  motion  prevail,  this  indictment  falls  ;  but  the  blood-honnds  of  the  law  may 
still  track  him  for  another  indictment.  I  desire  him  to  go  forth  from  this  court- 
room free  from  accusation  and  protected  for  the  future. 

Mr.  PiBRRBPONT.  Well,  then,  vour  honor,  the  reason  is  that  he  wants  him 
tried  by  a  jury,  and  that  is  exactly  what  we  want.  I  called  your  honor's  at- 
tention yesterday  to  the  section  of  the  statute  now  before  me,  that  whenever 
there  is  a  failure  from  any  cause  with  regard  to  a  jury,  the  marshal  shall  summon 
good  and  lawful  men  under  this  law  to  exercise  that  high  function ;  and  we 
yesterday  proposed,  in  order  that  no  delay  might  be  had,  that  the  marshal  should 
proceed  to  summon  a  jury,  and  if  they  choose  to  say  so,  we  will  without  another 
word  say,  let  the  marshal  proceed,  under  your  honor's  direction,  to  subpoDna  a 
jury  and  biing  them  into  this  court  to  try  this  case.  They  will  discover  before 
we  progress  much  further,  that  the  United  States  are  as  zealous,  as  earn- 
est, and  as  eager,  to  try  this  cause  as  the  other  side ;  and  they  will  discover 
before  it  is  throup^h  that  the  public  mind  will  be  set  right  with  regard  to  a  great 
many  subjects  about  which  there  have  been  such  active,  numerous,  and  un- 
founded reports.  Since  I  have  been  here  in  this  city  for  these  past  few  days, 
has  it  been  circulated  in  nearly  all  the  journals  of  this  country,  that  the  United 
States  dared  not  bring  forward  the  diary  found  upon  the  murderer  of  the  Presi- 
dent, because  that  diary  would  prove  things  they  did  not  want  to  have  known. 
All  these  things  will  be  proved  to  be  false,  and  all  the  papers,  about  the  sup- 
pression of  which  so  much  has  been  said,  will  be  exhibited  here  on  the  trial 
of  this  case.  We  are  anxious  that  it  should  be  proceeded  with  at  once.  It 
has  likewise  been  circulated  through  all  the  public  journals,  that  after  the 
former  convictions,  when  an  eflTort  was  made  to  go  to  the  President  for  pardon, 
men  active  here  at  the  seat  of  government  prevented  any  attempt  being  made, 
or  the  President  being  even  reached  for  the  purpose  of  seeing  whether  he  would 
not  exercise  clemency ;  whereas,  the  truth,  and  the  truth  of  record  which  will 
be  presented  in  this  court,  is  that  all  this  matter  was  brought  before  the  Presi- 
dent and  presented  to  a  full  Cabinet  meeting  where  it  was  thoroughly  discussed  ; 
and  after  such  discussion,  condemnation  and  execution  received  not  only  the 
sanction  of  the  President  but  that  of  every  member  of  his  Cabinet.  This  and 
a  thousand  other  of  these  false  stories  will  be  all  set  at  rest  forever  in  the  pro- 
gress of  this  trial ;  and  the  gentlemen  may  feel  assured  that  not  only  are  we 
ready  but  that  we  are  desirous  of  proceeding  at  once  with  the  case. 

If  your  honor  please,  it  is  inconceivable  to  the  human  mind  that  mortal  man 
can  be  placed  in  a  more  solemn  position  than  in  coming  before  a  court  and  a 
jury  where  a  fellow  mm  is  to  bo  tried  for  his  life  ft)r  the  murder  of  another. 
More  than  ordinarily  solemn  is  this  great  occasion.  On  the  14th  of  April,  1865, 
a  crime  was  committed  that  shocked  the  whole  civilized  world  ;  a  crime  against 
Ijuman  life ;  a  crime  against  the  laws ;  and  a  crime  against  our  beloved  govern- 
o«nt.  Men  have  suffered  death  for  that  crime,  and  one,  who  is  now  the  prisoner 
tt  the  bar,  by  the  grand  jury  of  your  District,  has  been  found  to  have  been  en- 
S>ged  in  that  great  crime.    He  is  here  to  be  tried.     We  hope  he  will  be  tried 


28  TRIAL   OF   JOHN   H    SURRATT. 

and  in  a  way  that  is  decent  and  becoming,  witb  all  the  solemnities  and  with  all  the 
forms  of  law;  that  he  will  be  tried  justly  and  fairly;  and  we  desire  that  the 
jury  who  shall  sit  to  try  him  shall  be  a  jury  brought  here  accorJing  to  all  the 
forms  of  law,  so  that  when  they  shall  render  their  verdict,  whether  that  verdict 
be  acquittal  or  condemnation,  this  whole  country  and  the  entire  civilized  world, 
who  will  read  that  verdict  will  know  and  feel  that  the  man  has  been  tried  fairly, 
that  he  has  been  tried  justly,  that  he  has  been  tried  by  a  judge  of  high  moral 
character  and  great  legal  learning,  that  he  has  been  defended  by  able  counsel, 
and  that  the  verdict,  for  him  or  against  him,  has  been  pronounced  by  honest 
jurors  who  are  brought  here  in  all  respects  according  to  tne  law. 

This  motion  is  made  for  the  purpose  that  when  this  trial  shall  take  place,  it 
shall  be  in  such  a  way  that  all  men  everywhere  shall  see  it  has  been  such  a  trial 
as  the  occasion  rcauires,  that  it  shall  not  be  a  mockery  and  a  sham,  and  that  the 
prisoner  shall  not  be  tried  by  jurors  who  are  not  legal  triers,  but  by  jurors  that 
are  brought  here  under  the  laws  of  the  United  States,  fit  and  proper  men  to  try 
this  case  as  the  law  directs. 

My  learned  friend  while  making  the  assertion  to  your  honor  that  the  preva- 
lence of  our  motion  would  set  his  client  at  large,  at  the  same  time  urges  yoiu: 
honor  to  deny  this  motion,  and  says  that  we  cannot  look  into  the  acts  of  this 
jury,  nor  into  the  statutes  which  direct  how  a  jury  shall  be  empanelled  or  how 
they  shall  be  selected,  and  cites  a  case  from  England,  which  I  shall  presently 
call  to  your  attention,  in  relation  to  the  sheriff  of  England.  Permit  me  to  say 
that  in  looking  sit  your  laws,  I  discover  that  the  sheriff  has  no  more  to  do  with 
this  jury  than  the  clerk  of  the  Senate  of  the  United  States.  Neither  the  sheriff, 
uor  the  marshal  occupying  the  place  of  sheriff,  has  any  responsible  duty  in  re- 
lation to  the  empanelling  of  this  jury.  Now  I  call  your  attention  to  the  law, 
and  I  submit  to  your  honor  that  when  a  man  is  to  be  tried  for  his  life,  if  the 
verdict  is  to  be  of  any  validity,  he  must  be  tried  according  to  the  law.  In  this 
country  and  in  England  from  which  we  derive  our  notions  of  liberty,  ever  has 
the  law  been  jealous  of  human  life,  and  so  jealous  that  I  believe  it  to  be  a  well- 
settled  principle  of  law  that  no  stipulation  of  counsel  and  no  stipulation  of  the 
prisoner  ever  could  allow  him  to  be  tried  by  twelve  men  and  convicted  and  ex- 
ecuted upon  such  a  verdict.  The  law  of  public  policy  is  that  the  man  who  is 
to  be  tried  for  his  life  shall  be  tried  in  all  respects  according  to  law  ;  that  the 
judge  who  tries  him  shall  sit  according  to  the  law ;  and  that  the  witnesses  shall 
be  sworn  and  testify  according  to  the  rules  of  law ;  and  the  jurors  who  are  to 
bring  in  their  judgment  upon  such  a  man  are  to  be  selected  in  the  way  that  the 
law  directs ;  and  if  selected  otherwise  the  verdict  is  good  for  nothing.  Let  us 
see  what  the  statute  says  about  it — the  statute  under  which  these  jurors  have 
any  power  whatever  to  try  this  prisoner.  Save  for  this  statute  these  jurors  have 
no  more  right  to  sit  in  judgment  than  jurors  from  the  city  of  New  York  or  from 
the  city  of  London.     What  does  the  statute  say  ?     Let  me  read  it : 

"  Be  it  enacted  hy  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  (Jongress  assembled.  That  it  shall  be  the  duty  of  the  regis- 
ter of  Washington  city  and  of  the  respective  clerks  of  the  city  of  Georgetown  and 
the  levy  court  of  Washington  county,  in  the  District  of  Columbia,  within  one 
month  after  the  passage  of  this  act,  and  on  or  before  the  first  day  of  February 
in  each  year  thereafter,  to  make  a  list  of  such  of  the  white  male  citizens,  tax- 
payers, residing  within  their  respective  jurisdictions,  as  they  shall  judge  best 
qualified  to  serve  as  jurors  in  the  courts  of  the  said  District." 

Now  what  is  required  by  this  law  in  the  very  first  section?  That  the 
jurors  shall  be  white  male  citizens,  tax- payers,  of  this  District,  otherwise 
they  cannot  be  jurors.  Now  let  me  ask  my  learned  friend  if  he  had  come 
into  this  court  and  discovered  that  every  juryman  sitting  in  these  seats  was  a 
negro,  and  he  had  made  the  motion  we  have  now  made,  and  I  had  risen  and 
said  to  him,  "  You  cannot  set  aside  this  panel  because  you  have  heard  the  evi- 


TRIAL  OF  JOHN  H.   SURRATT.  29 

dence  here  of  these  men  who  selected  it,  and  you  cannot  go  hehind  what  they 
lay  ahout  it."  "What  would  my  learned  friend  say  to  the  argument  ?  Suppose 
I  took  his  own  ingenious  and  excellent  argument  and  turned  it  against  himself, 
what  would  he  say  to  it?  Would  he  think  it  a  good  argument  if  every  man 
who  sat  there  was  a  negro?  Would  he  not  turn  me  to  this  statute  and  say  "  of 
the  white  male  citizens,"  and  then  turn  to  your  honor  and  say,  "  Arc  these  white 
male  citizens,  every  man  of  whom  is  a  woolly-hoaded  African  ?  [Laughter.] 
He  cannot  meet  that  suggestion ;  and  the  case  is  precisely  parallel  to  the  one  at  har. 

Mr.  Merrick.  If  my  learned  friend  will  allow  me  to  ask  him  a  question 

Mr.  PiERREPONT.  Any. 

Mr.  Merrick.  Does  the  learned  gentleman  include  in  his  motion  challenging 
this  array  any  ohjection  to  the  personal  qualification  of  these  jurors  ? 

Mr.  PiERREPONT.  I  most  assuredly  do. 

'^Ir.  Merrick.  I  was  not  aware  of  it. 

Mr.  PiERREPONT.  They  are  just  as  much  disqualified  as  though  they  were 
negroes.  The  statute  says  they  shall  be  "white;"  and  the  statute  says  they 
shall  he  "tax-payers;"  and  the  statute  says  they  shall  reside  within  this  Dis- 
trict. We  find  they  are  not  a  jury  of  tax-payers,  and  they  are  not  a  jury  of 
negroes ;  but  they  might  just  as  well  have  been  tax-payers  and  negroes,  for  on 
inquiry  of  my  learned  friend,  the  district  attorney,  I  am  informed  that  you  have 
in  your  District  negroes  who  are  tax-payers.  If  these,  then,  had  been  tax-paying 
negroes,  they  would  have  been  just  as  well  qualified  as  white  non-tax-payers, 
and  there  is  no  getting  rid  of  it. 

Let  us  see  what  further  the  statute  says  on  this  subject.  I  am  only  in  the 
beginning  of  it.  Those  are  the  men  that  the  law  says  are  to  be  selected  as 
jurors.  I  repeat,  let  us  see  what  further  it  says.  And  they  may  put  in  "  the 
names  of  such  qualified  persons  as  were  on  the  list  the  previous  year,  but  who 
did  not  serve  as  jurors ;  and  the  lists  thus  made  of  the  register  and  clerks  afore- 
said shall  be  kept  by  them  respectively  and  be  delivered  to  their  successors  in 
office."  These  three  men  shall  make  their  lists  of  tax-payers  who  arc  white 
in  these  three  districts.  What  shall  they  do  when  they  get  together  ?  The 
officers  aforesaid  shall  select  from  the  list  of  the  register  of  Washington  city  the 
names  of  four  hundred  persons.  That  is  what  these  three  men  arc  to  do.  This 
board,  as  my  learned  adversary  calls  .it,  and  very  justly,  are  to  select  first  from 
the  list  of  the  rrgister  of  the  city  of  Washington  four  hundred  names.  Let  us 
start  there.  Did  they  select  from  the  register's  list  of  the  city  of  Washington 
four  hundred  names  ?  He  tells  you  that  they  never  selected  one  name,  and  that 
he  never  had  there  a  list,  first  or  last.  When  I  asked  him  on  the  cross-exam- 
ination here  yesterday,  after  they  had  brought  him  here,  "  Did  the  others  even 
see  the  rolls  of  the  names  that  you  put  into  the  box?"  He  said  "No." 
"Did  you  see  any  that  they  put  in  ?"  He  said  "No."  And  you  will  find 
it  so  appears  on  the  record. 

What  was  the  object  of  this  law  ?  The  register  of  the  city  of  Washington 
was  to  bring  the  list  of  tax- payers  whom  he  deemed  qualified.  The  clerk  of 
the  levy  court  was  to  bring  his  list  of  tax-payers  whom  he  judged  to  be  quali- 
fied. The  clerk  of  Georgetown  was  to  bring  his  list  of  tax-payers  whom  he 
thought  to  be 'qualified.  And  this  board,  thus  together,  was  to  select  first  from 
the  register's  list  of  the  city  of  Washington  the  names  of  four  hundred  persons, 
from  that  of  the  clerk  of  Georgetown  eighty,  and  from  that  of  the  clerk  of  the 
levy  court  forty.  Did  these  three  men  select  from  the  list  of  the  register  of 
Washington  four  hundred  ?  They  never  selected  a  man,  and  that  evidence  is 
perfect  and  complete.  Did  the  three  select  from  the  list  of  the  clerk  of  George- 
town eighty  persons  ?  Not  a  man.  Did  this  board  select  from  the  list  of  the 
derk  of  the  levy  court  forty  ?  Not  one.  Now,  there  was  some  reason  for 
this  law,  was  there  not  t  The  object  of  it  was  to  have  a  fair  jury.  This 
statute  was  passed  by  the  Oongress  of  the   United  States  for  the  govern- 


80  TRIAL   OP  JOHN   H.   8UBBATT. 

ment  of  this  District,  in  which  it  was  known  when  the  statate  was  passed 
that  there  were  persons  of  a  variety  of  views  in  relation  to  the  great  public 
Questions.  It  was  known  that  in  this  city  there  were  a  great  many  men  who 
did  not  sympathize  with  the  government.  There  were  others  who  were  its  bitter 
enemies.  There  were  others  who  were  zealously  in  its  favor.  There  were  the 
strongest  abolitionists  on  the  one  hand,  and  on  the  other  those  who  believed  in 
and  favored  slavery.  Every  grade  and  class  of  political  opinion  and  of  moral 
view  and  religious  notion  existed  in  this  city  when  this  statute  was  passed,  as 
it  does  to-day,  and  Congress  was  anxious  that  jurors  should  be  so  selected  that 
when  men  came  to  be  tried  in  this  District  they  should  feel  that  they  were  to 
haye  a  jury  without  prejudice,  and  a  jury  in  the  selection  of  which  more  than 
one  man  had  been  engaged.  That  they  could  have  a  jury,  after  the  list  had  been 
prepared,  of  the  kind  of  men  that  the  statute  required,  the  strict  provisions  of 
which  I  have  just  read.  Now,  I  appeal  to  your  honor  if,  under  the  evidence 
before  the  court  on  the  demurrer  which  admits  it,  one  single  requisite  has  been 
complied  with.  I  ask  your  honor,  suppose  that  these  men  had  selected  anv 
sort  of  men  they  had  pleased,  men  who  were  not  residents,  and,  as  I  before  saij, 
men  who  were  negroes,  would  that  have  been  a  good  jiury  ?  Suppose  the  clerk 
of  the  Senate  and  the  chairman  of  the  Judiciary  Committee  had  met  together  to 
select  jurors  and  put  their  names  in  the  box,  and  then  afterwards  the  clerk  had 
drawn  them  out,  would  that  have  been  a  good  selection  of  the  jury  ?  It  would 
have  been  just  as  good  as  this.  It  would  have  been  just  as  strict  a  com- 
pliance with  the  law  as  this  is.  Why  have  any  law  about  it  ?  Why  not  say, 
"  Let  the  register  and  these  men  go  and  do  as  they  please  about  it."  The  law 
was  made  surely  for  something. 

Let  us  see  what  further  provisions  they  made  to  guard  against  any  fraud  or 
any  partiality  in  relation  to  the  selection  of  a  jury.  "  The  names  selected  from 
said  litits  shall  be  written  on  separate  and  similar  pieces  of  paper,  which  shall 
be  so  folded  or  rolled  up  that  the  names  cannot  be  seen,  and  placed  in  a  box." 
Were  the  names  written  on  these  pieces  of  paper  taken  from  those  lists  ?  Not 
a  name  selected  by  this  board  was  taken  from  these  lists ;  but  these  three  dif- 
ferent persons  selected,  and  neither  ever  let  the  other  know,  as  the  evidence 
shows,  what  he  had  selected.  Not  a  man  knew  any  except  such  as  were  his 
own  ;  and  the  register  of  this  city  did  not  even  know  his  own,  for  his  own  clerk, 
as  he  says  himself,  rolled  up  the  names  ctnd  put  them  in.  *'And  they  shall  be 
placed  in  the  box  to  be  provided  by  the  register  and  the  clerks  aforesaid,  which 
box  shall  be  sealed,  and  after  being  thoroughly  shaken  shall  be  delivered  to  the 
clerk  of  the  circuit  court  of  Washington  county  for  safe  keeping."  Let  us  see 
whether  that  part  of  the  law,  under  this  evidence,  was  complied  with.  The 
box  was  not  sealed,  as  the  evidence  shows.  It  was  not  sealed  or  delivered  to 
the  clerk.  That  is  a  very  important  provision.  If  the  box  was  delivered  to  the 
clerk  unsealed,  why,  your  honor  knows,  there  might  be  a  clerk  dishonest — I  do 
not  wish  to  be  understood  as  making  any  such  suggestion  here,  on  the  contrary, 
very  far  from  it — but  there  might  be  a  clerk  or  a  deputy  clerk,  or  some  one 
connected  with  the  office,  who  might  see  fit  to  stuff  that  box  with  other  names 
for  other  motives ;  and,  therefore,  to  provide  against  this,  it  is  enacted  that  this 
box,  by  these  men  who  compose  this  board,  shall  be  sealed  and  thoroughly 
shaken,  and  after  it  is  thus  sealed  and  thoroughly  shaken  it  shall  be  deliver^ 
to  the  clerk  of  the  circuit  court.  The  evidence  is  that  when  this  box  was  de- 
livered to  the  clerk  of  the  circuit  court  it  was  unsealed.  Can  it  be  said  and 
urged  to  your  honor  that  these  men,  intrusted  with  the  performance  of  this 
high  duty,  can  properly  disregard  every  one  of  these  requirements  ?  I  submit 
to  yoiur  honor,  and  will  prove  by  this  evidence  before  I  am  through,  that  from 
the  first  step  they  took  to  the  last  they  did  so  disregard  them.  Not  one  single 
act  did  they  do  that  was  not  in  violation  of  the  statute. 

Next,  "  that  the  said  register  and  clerks  and  the  clerk  of  the  circuit  court 


TRIAL   OF   JOHN   H.   SURRATT.  31 

iliall,  at  least  ten  days  before  the  commencement  of  each  term  of  the  circuit  or 
of  the  criminal  court,  meet  at  the  City  Hall  of  Washington  city,  and  then  and 
there  the  clerk  of  the  circuit  court  shall  publicly  break  the  seal  of  said  box,  and 
proceed  to  draw  therefrom  the  names  of  so  many  persons  as  are  required." 

There  is  another  requisition :  That  these  men,  that  this  board  of  three,  should 
thus  select  the  jurors  and  put  their  names  in  a  box,  seal  it  up  and  deliver  it  to 
the  clerk,  shaken  and  sealed ;  and  a  very  important  provision  it  is,  as  your  honor 
will  see.  Suppose,  for  any  bad  motive — no  such  motive  do  I  attribute  in  this 
case,  bnt  make  the  supposition  simply  as  an  illustration  of  the  point  of  law  that 
I  wish  to  bring  to  the  attention  of  the  court — suppose,  from  any  motive  of  par- 
tiality or  interest,  one  of  these  gentlemen  forming  the  board  saw  fit,  in  drawjng 
from  the  box,  to  draw  names  which  were  in  his  hand  instead  of  the  names  in  the 
box.  The  law  provides  that  he  shall  not  have  that  bpportunity  ;  that  he  shall 
not  draw  them,  but  that  the  clerk  of  this  court  shall  draw  the  names.  Now, 
what  is  the  evidence  ?  It  is  that  one  of  this  board,  the  clerk  of  Georgetown, 
drew  the  names,  and  not  the  clerk  of  this  court.  The  clerk  of  Georgetown  had 
no  more  right  to  draw  these  names  than  my  learned  friend,  the  district  attorney ; 
and  drawing  them,  he  was  doing  that  which  made  it  an  illegal  draft  of  this  jury, 
directly  contrary  to  the  law.  Law  is  not  supposed  to  be  made  in  folly,  or  in 
nonsense.  Congress  makes  this  solemn  provision  that  these  names  shall  be 
drawn  by  the  clerk,  who  is  not  one  of  the  board,  but  a  totally  different  man, 
after  the  box  containing  the  names  shall  have  been  delivered  to  him,  shaken  and 
sealed  ;  yet  one  of  this  board  draws  the  jury.  That  is  the  evidence  before  us, 
and  uncontradicted. 

Let  us  sec  what  further  provisions  are  made  in  relation  to  this  matter.  It  was 
evidently  anticipated  by  the  Congress  which  passed  this  law  that  a  contingency 
might  arise  in  which  it  might  become  necessary  to  set  aside  the  array  and  order 
a  new  panel,  and,  in  order  to  meet  that  contingency,  they  have  made  provision 
for  it  in  the  section  which  I  will  now  read ;  and  I  will  just  say  that  my  learned 
friend,  in  reading  from  this  case  in  England,  read  what  the  learned  judge  there 
said  in  relation  to  their  law ;  that  their  law  did  not  allow  them  to  go  behind  the 
sheriflF  in  relation  to  the  matter,  and  he  gave  as  one  good  reason  why  the  sheriff's 
selection  should  not  be  set  aside,  that  there  was  no  other  earthly  mode  prepared 
in  England  by  which  they  could  proceed  to  the  trial  of  any  case.  My  learned 
friend  read  it  from  the  report,  some  portions  of  which  I  shall  have  occasion,  in  a 
moment  or  two,  to  cite  to  your  honor. 

Mr.  Bradlbv.  Will  you  be  kind  enough  to  repeat  the  remark  just  made  ?  I 
was  otherwise  engaged  at  the  moment,  and  did  not  hear  it. 

Mr.  PiBRREPONT.  I  say  that  one  of  the  reasons  that  the  Lord  Chief  Justice 
Tindal  gave  as  a  good- reason  for  setting  aside  the  selection  of  jurors  in  England 
was,  that  if  that  motion  were  granted,  there  would  be  no  mode  by  which  they^ 
could  get  a  jury  to  proceed  with  the  trial  of  causes. 
Mr.  Bradley.  On,  yes;  I  now  understand  you. 

Mr.  PiBRREPONT.  Now,  in  our  case  no  such  reason  can  be  assigned.  The 
statute  does  contemplate  just  such  an  emergency,  and  has  made  a  provision  for 
it  It  provides,  in  section  five,  that  •*  if  a  jury  be  required  for  the  circuit  court, 
the  twenty-six  persons  whose  names  shall  first  be  drawn  shall  constitute  the  jury 
for  that  term ;  and  the  names  of  the  persons  drawn  as  aforesaid  shall  not  be 
again  placed  in  such  box  for  a  period  of  two  years.  If  any  person  whose  name 
ia  so  drawn  shall  have  died,  or  has  removed  from  the  District,  or  has  become 
otherwise  disabled  from  serving  as  a  juror,  the  said  register  and  clerks  shall 
draw  from  the  box  the  name  of  another  person  who  shall  serve  instead ;  and  after 
the  requisite  number  of  jurors  shall  have  been  so  drawn,  the  said  box  shall  be 
•gain  sealed  and  delivered  to  the  clerk  of  the  circuit  court,  as  aforesaid." 

Immediately  following  that  provision  is  section  7th,  which  says  that  "  in  case 
either  of  the  officers  whose  duty  it  is  to  make  out  the  lists  aforesaid  shall  ne- 


32  TRIAL   OF  JOHN  H.   SUBBATT. 

gleet  or  refuse  to  act,  or  in  case  either  of  them  shall  be  interested  in  any  action 
or  proceeding  pending  in  the  said  circuit  or  criminal  court,  the  chief  judge  of  the 
circuit  court  shall  appoint  a  fit  and  proper  person  to  discharge  the  jury  instead; 
and  if  the  persons  selected  aa  jurors  do  not  attend,  the  court  may  order  the 
marshal  to  summon  other  respectable  tax  payers,  possessing  the  other  legal 
gualifirations,  to  supply  the  deficiency  ;  but  if  at  any  time  there  should  not  be, 
by  reason  of  challenge  or  otherwise,  a  sufficient  number  of  jurors  to  make  up  the 
panel,  the  court  shall  order  the  marshal  to  summon  as  many  talesmen  as  are 
necessary  for  that  purpose." 

Now,  if  the  persons  selected  as  jurors  do  not  attend,  the  court  may  order  the 
marshal  to  summon  other  respectable — what?  "Other  respectable  tax-payers, 
possessing  the  other  legal  qualifications,  to  supply  the  deficiency."  In  the  first 
section  it  states  what  the  legal  qualifications  are — "  to  be  tax-payers,  and  to  pos- 
sess the  other  qualifications."  The  seventh  section  provides  that,  in  case  of 
failure  from  any  cause,  the  court  shall  direct  the  marshal  to  summon  as  tales- 
men other  respectable  tax-payers,  possessing  the  other  legal  requisites ;  and  the 
marshal,  under  the  direction  of  the  court,  shall  thus  prepa«e  the  list  of  other  re- 
spectjible  tax-payers,  &c.  Congress  seemed,  therefore,  determined  that  in  no 
event  should  justice  fail,  and  that  no  such  reason  could  be  given  by  your  honor 
as  was  given  by  Chief  Justice  Tindal,  that  there  could  be  no  other  mode  of  pro- 
ceeding. 

The  thing  is  complete ;  there  is  no  difficulty  whatever  in  the  matter.  Con- 
gress has  provided,  first,  that  it  shall  be  done  in  a  particular  way ;  that  a  par- 
ticular kind  of  persons,  and  those  only,  shall  be  the  jurors,  and  that  they  shall 
be  selected  in  a  certain  manner  and  drawn  in  a  certain  manner ;  and  then,  to 
avoid  the  possibility  of  a  failure  of  justice,  they  say  that,  if  from  challenging  or 
from  any  other  cause,  a  sufficient  number  may  not  be  had,  the  court  shall  order 
the  marshal  to  make  the  selections  from  the  proper  persons  having  the  legal 
qualifications,  so  that  all  these  questions  will  lie  quite  outside  of  this  case,  and 
power  in  the  court  is  complete.  There  is  no  cause  or  reason  for  delay ;  it  may 
be  done  now  and  forthwith,  and  the  sooner  it  is  done  the  better.  I  take  it  for 
granted  that  my  learned  friends  want  it  to  be  done  soon.  They  want  to  go  on 
with  the  case.     We  are  as  anxious  as  they  to  go  on  with  it. 

There  is  one  argument  which  was  made  by  the  gentleman  in  the  early  part 
of  his  remarks  to  whjch  1  desire  to  call  to  the  attention  of  the  court,  and  that  is 
this,  that  if  this  jury  is  an  illegal  jury,  why,  then,  other  men  have  been  convicted 
here  illegally.  He  urged  it  with  much  earnestness,  that  that  was  a  reason,  if 
you  had  been  going  on  in  an  illegal  way,  why  you  should  continue  to  do  so. 
I  think  that,  on  reflection,  my  learned  friend  will  not  consider  that  argument 
sound.  If  you  have  been  doing  illegal  or  immoral  or  any  other  wrong  acts,  the 
time  to  stop  is  when  you  first  make  the  discovery,  and  not  to  say,  **  We  will 
continue  it,  because  we  have  always  done  it."  Your  honor  knows  when  we 
made  some  attempt  to  civilize  the  Indians,  and  an  Indian  chief  was  reproved 
for  murdering  his  enemies,  and  was  told  that  it  was  unchristian  and  wrong,  he 
said  he  had  always  killed  his  enemies,  and  insisted  that,  therefore,  he  should 
still  kill  them.  An  immoral  woman  of  the  Sandwich  islands,  too,  whom  our 
missionaries  attempted  to  convert  to  virtue  after  marriage,  urged  as  a  reason  for 
continuing  her  mode  of  life,  that  she  had  always  been  so  doing  as  she  was  then. 

My  learned  friend  read  from  page  247,  of  Clark  &  Fin  nelly's  Reports.  Let 
us  see  what  that  case  was.  The  question  came  up  for  this  judge  to  answer; 
and  the  answer  he  gave  to  the  sixth  question  was — in  England  they  have  a 
statute  upon  the  subject  it  seems 

Mr  BuADLBV.  1  beg  your  pardon. 

Mr.  PiBRRKPONT.  They  have  a  statute  in  England  to  which  he  alludes.  I 
am  coming  to  that  in  a  moment. 


TRUL   OP  JOHN   H,   8URRATT.  33 

Mr.  Merrick.  I  thought  you  stated  that  there  wae  a  statute  in  regard  to  the 
grounds  upon  which  a  challenge  would  be  allowed. 

Mr.  PiBRRRPONT.  Oh,  no,  sir;  the  statute  upon  which  this  was  based.  The 
answer  of  the  learned  jadge  was :  "  the  only  ground  upon  which  the  array  is 
allowed  by  the  English  law  is  the  unindifftrency  or  default  of  the  sheriff.  But 
no  want  of  indifference  in  the  sheriff,  nor  any  default  in  him  or  his  officers,  was 
assigned  for  the  cause  of  the  challenge  upon  this  occasion.*' 

That  was  the  end  of  the  case.     It  ought  to  have  been  the  end  of  the  case. 
This  word  "  unindifferency,"  which  I  see  the  learned  judge  uses  here,  is  cer- 
tainly a  new  word  to  me — I  never  saw  it  before.     I  suppose,  however,  it  is  a 
good  one. 
Mr.  MhRRicK    It  is  habitually  used  in  that  connection  throughout  the  law. 
Mr.  PiBRRKPO.NT.  I  say  I  suppose  it  is  a  good  word;  but  it  is  not  one  that 
I  am  accustomed  to.     Of  course,  we  understand  what  it  means.     Now,  the 
only  ground  to  the  challenge  of  the  array  that  is  allowed  by  the  English  law  is 
the  "  unindifferency  or  default  of  the  sheriff."     Tliat  being  so,  it  does  not  need 
much  comment.     1  be  only  ground  upon  which  the  law  allowed  a  challenge  was  not 
pretended  to  exist,  as  the  learned  judge  said.    lht;refore  there  was  no  necessity 
for  spending  a  great  deal  of  time  upon  a  case  like  that.     Of  course,  that  would 
end  the  case.     It  did  not  need  so  much  learning  or  argument  as  the  learned  judge 
and  the  lord  chancellor  seem  to  have  given  to  it  f  but  from  the  notoriety  of  the 
case,  and  from  the  magnitude  of  the  subject  involved,  which  was  then  made  a 
political  affair,  they  saw  fit  to  give  it  a  great  deal  of  consideration,  and  gave  aa 
reasons  why  they  should  not  undertake  to  set  aside  this  panel  the  fact  that  they 
had  no  possible  way  of  having  justice  administered,  no  other  mode  of  getting  a 
jury.     It  was  sot  pretended  in  the  challenge,  as  the  judge  said,  that  the  legal 
grouud  and  the  only  legal  ground  upon  which  there  could  be  any  complaint  pre- 
dicated existed.     Therefore,  of  course,  the  motion  was  denied.    And  in  this  case, 
if  there  is  no  ground  for  it,  of  course  the  motion  will  be  denied.    If  there  is 
^ound  for  it,  I  take  it  the  motion  will  be  granted.    In  this  case,  we  act  under 
the  laws  of  the  United  States  directly — under  a  statute.    It  is  a  principle  of 
the  common  law,  well  known  and  understood  by  all  lawyers  ^d  all  men,  per- 
haps, that  it  lies  in  the  discretion  of  the  judge  to  construe  the  law ;  it  is  not 
only  in  his  discretion  but  his  duty  to  see  that  the  law  over  which  he  is  called 
to  preside  is  properly  administered.     Your  honor  is  placed  in  your  high  posi- 
tion in  this  court  for  the  purpose  of  giving  construction  to  this  statute  ;  for  the 
purpose  of  seeing  that  the  laws  of  Congress  relating  to  this  District  and  this 
court  over  which  you  preside  are  executed.    This  is  not  an  unmeaning  statute. 
The  reasons  of  it  are  apparent  upon  its  face,  and  when  Congress  passed  it  it  was 
understood  that  this  statute  was  to  be  obeyed,  and  that  when  a  man  was  to  be 
tried  for  his  life,  or  when  he  was  to  be  tried  for  any  felony,  or  any  lesser  crime 
or  misdemeanor,  or  for  anything  else,  the  jurors  who  were  to  try  him  were 
to  be  selected  hy  law,  and  that  no  irregularity,  informality,  or  defect  in  that  se- 
lection should  be  passed  lightly  over  by  the  judge  who  presides.    But  it  is  his 
daty  to  see  that  the  law  is  administered,  if  it  be  called  to  his  notice ;  and  if 
the  statute  has  never  before  been  called  to  your  notice,  of  course  your  honor  has 
not  passed  upon  it.    As  I  learn  from  my  associate,  the  district  attorney,  and  as 
1  infer  from  what  the  learned  counsel  on  the  other  side  have  said,  this  question 
haa  never  here  arisen  before.     Of  course,  therefore,  it  is  no  man's  fault;  it  has 
not  been  thought  of.    These  men  proceeded  in  their  own  way.    They  thought 
they  would  t^ke  their  way  to  get  a  jury,  instead  of  the  way  of  the  law.    They 
chose  to  tread  in  their  own  path ;  to  be  a  law  unto  themselves ;  to  say,"  We  will 
fix  up  a  jury  as  we  please,"  reckless  of  the  law.     It  is  your  honor's  duty  to  see 
^t  a  jury  is  selected  in  the  way  that  the  law  directs,  and  that  is  all  we  ask. 
Ve  are  ready  now  to  proceed  to  trial ;  we  are  desirous  that  the  trial  shall  be 


34  TRIAL   OP  JOHN  H.   SURRATT. 

proceeded  with,  and  we  ask  and  urge  that  this  other  provision  of  the  statute  hy 
which  your  honor  is  empowered  to  direct  the  marshal  to  summon  a  jury  for  the 
purpose  of  trying  the  cause  shall  be  enforced,  and  that  a  jury  shall  be  empan- 
elled, in  order  that  we  may  be  permitted  to  proceed  to  trial  at  the  earliest  day  that 
such  jury  can  be  selected.  And  we  see  no  reason  why  it  may  not  be  to-morrow 
as  well  as  any  distant  day,  so  that  any  so-called  reason  of  delay  is  not  a  reason ; 
so  that  any  alleged  reason  of  the  failure  of  justice  is  a  false  reason.  The  statute 
has  provided  for  all  these  things,  and  it  lies  in  your  honor  to  enforce  it ;  and 
when  the  facts  have  been  presented  before  the  court ;  when  it  is  shown  that  the 
statute  is  not  complied  with,  and  when  it  appears  that  the  law  has  provided  that 
a  jury  may  be  selected  by  your  honor's  direction  in  case  of  previous  failure,  I, 
for  one,  cannot  for  a  moment  imagine  that  your  honor  will  not  direct  that  the  law 
be  complied  with,  or  that  you  will  allow  subordinates  to  exercise  their  own  whims 
or  notions,  to  set  aside  the  solemn  statute  of  the  law. 

This  is  a  case  such  as  your  honor  has  never  tried,  such  as  your  honor  never 
will  again  try  ;  such  as  has  never  been  before  tried  in  this  country,  and  such, 
we  hope,  as  never  will  be  tried  again.  It  is  the  first  civil  trial  for  the  murder  of 
a  President  of  the  United  States  ;  the  first  civil  trial  for  the  great  crime  of  an 
attempt  to  destroy  the  government  of  the  United  States;  one  of  that  class 
of  crimes  which  shock  the  whole  world.  Many  people  who  despaired  of  the 
republic  have  doubts  whether  you  can,  before  a  civil  tribunal,  obtain  a  just  and 
honest  trial,  a  fair  and  impartial  verdict  in  a  great  case  like  this.  Therefore 
this  case  possesses  a  weight  and  magnitude  such  as  Furely  no  other  case  in 
this  country  ever  had.  It  is  in  fact  not  dimply  the  trial  of  a  man  for  his  life; 
it  is  in  a  measure  a  trial  whether  we  can  get  a  jury  legally  empanelled  to  try 
assassins  and  murderers  of  the  President  of  the  United  States,  who  attempted 
to  throw  our  country  into  confusion  and  anarchy,  and  who  designed  all  the  hor- 
rors to  follow  their  act  which  the  human  mind  can  conceive.  It  is  to  be  seen 
whether  such  trial  can  be  fair,  whether  justice  can  be  done.  All  of  us  who  have 
read  anything  of  history  or  who  have  reflected  upon  human  nature,  know  that 
civil  society  will  protect  itself.  They  know,  if  the  civil  courts  and  the  verdicts 
of  juries  cannot  administer  justice,  that  society,  as  in  France  and  in  other  coun- 
tries where  the  necessity  has  arisen,  will  be  driven  to  take  refuge  in  the  gloomy 
despotism  of  military  power.  God  deliver  us  from  that !  we  want  to  show 
before  our  countrymen  and  before  the  world,  that  an  honest  jury  of  this  District 
will  give  an  honest  verdict ;  that  we  can  have  a  fair  trial  before  an  impartial 
court ;  and  we  believe  that  when  the  jury  thus  selected  are  brought  together  to 
try  the  cause,  they  will  give  a  verdict  with  which  our  countrymen  will  be  satis- 
fied— and  that  is  all  we  want. 

Mr.  Bradley.  If  your  honor  please,  I  know  no  case  in  which  it  has  been  my 
fortune  to  be  engaged  heretofore  in  which  I  rose  to  discuss  a  question  of  law 
with  deeper  interest  than  I  feel  now.  The  temptation  is  very  great  to  be  led  away 
from  the  true  question  submitted  to  your  honor  for  your  decision,  and  it  is  ex- 
ceedingly difficult  to  resist  following  the  course  which  has  been  pursued  upon 
the  other  side  by  discussing,  not  questions  of  law,  but  by  presenting  considera- 
tions to  the  court  which  should  have  no  influence  upon  any  judicial  mind. 

We  are  told  that  a  jury  is  to  be  empanelled  to  try  the  assassin  of  the  Presi- 
dent. It  would  have  been  better  to  have  said  him  who  has  been  charged  with 
being  concerned  in  that  monstrous  crime. 

Mr.  PiBRRBPONT.  Excuse  me;  I  think  my  learned  friend  could  not  have 
heard  all  the  language  I  used.     I  said,  as  found  by  the  grand  jury  ^ 

Mr.  Bradley.  That  observation  escaped  my  attention.  There  are,  if  the  court 
please,  other  inducements  which  are  hard  to  resist,  that  lead  me  to  make  some 
commentaries  upon  the  course  pursued  by  gentlemen  on  the  other  side  ;  but  time 
k  too  precious,  for  I  desire  to  have  this  discussion  closed  in  time  to  receive  the 
decision  of  your  honor  to-day,  that  if  this  motion  is  overruled  and  the  demurrer 


TRIAL  OP  JOHN  H.   8URRATT.  35 

Biutoined  we  may  at  once  proceed  to  impanel  a  jury,  and  if  it  is  not  and  there  is 
any  other  movement  of  delay  on  the  part  of  the  prosecution,  that  we  may  be  pre- 
pared to  meet  every  dilatory  process  as  soon  as  it  arises.  We  are  in  earnest* 
we  deshne  to  have  this  party  tried  now,  we  desire  to  have  him  tried  by  a  jury 
amni  txceptione  majores,  against  whom  not  a  breath  has  been  uttered  by  any 
counsel  who  has  addressed  the  court  since  the  commencement  of  these  proceed- 
ings, by  a  jury  empanelled  according  t^  the  form  of  law  which  has  prevailed 
since  the  passage  of  the  act  under  which  it  is  empanelled — a  jury  above  challenge 
for  qualification — a  jury  conceded  to  have  been  selected  by  honest  men  with 
honest  purposes,  without  reference  to  this  trial — a  jury  standing,  if  a  jury  can 
stand,  impartial  in  view  of  such  an  event  as  has  been  referred  to— a  jury  standing 
impartial  between  the  government  and  the  accused.  We  desire  that  the  inten- 
tion of  the  act  of  Congress  shall  be  carried  out,  which  was  to  take  from  the 
marshal  of  this  District  the  power  to  select  jurors  ;  we  desire,  if  possible,  to 
avoid  the  selection  which  may  be  made  of  talesmen,  for  we  know  too  well  the 
condition  of  society  here  ;  we  desire  to  have  such  a  juiy  as  has  been  impanelled 
ander  the  circumstances  in  which  this  jury  has  been  summoned,  admitted  to  be 
free  from  all  exception. 

But  again  I  take  issue  with  my  learned  friend  on  the  other  side.   We  desire 
to  have  a  jury  that  can  try  the  case  now  ;  for  if  we  do  not  try  it  now,  no  jury 
under  that  statute  can  be  summoned  or  returned  until  next  February.     The 
condition  in  which  the  marshal   is  to  be  called  in  to  summon  talesmen  cannot 
arise,  because  there  has  been  no  panel  returned,  and  therefore  no  panel  can  be 
exhausted,   and   until   a  panel  has   been  returned  and  has  been  exhausted 
by  some   process  of  law,  the  authority  of  the   marshal   to  summon  tales- 
men 16  out  of  the  question.     The  predicate  is  that  a  panel  shall  have  been  ex- 
hausted.    If  there  is  no  panel,  there  is  no  predicate,  and  if  that  is  no  predicate, 
the  marshal  cannot  summon.     We  are  sincere,  if  your  honor  please,  in  endea- 
Torin?  to  bring  this  question  to   an   issue  now.     Our  brethren  claim  and  we 
accord  to  them  the  same  sincerity.     We  may  have  done  them  injustice  in  sup- 
posing this  was  interposed  for  delay ;  we  may  have  done  them  injustice  in  sup- 
posing that  at  this  late  stage  of  the  term  and  after  so  many  years  of  experience 
this  process  of  selecting  a  jury  was  first  discovered  to  be  wrong.    I  hope  we  did. 
Bat  there  is  a  graver  view  of  this  question  which  has  not  been  touched  by  the 
counsel  on  the  other  side,  nor  by  my  learned  brother  who  preceded  me.     We 
have  been  told  that  it  is  an  obligation  of  common  law  that  the  courts  shall  en- 
force statutory  provisions ;  but  there  is  a  higher  and  a  holier  duty,  that  courts  shall 
not  make  law.    The  counsel  on  the  other  side  seek  by  this  motion  to  prevail  upon 
your  honor  to  make  a  law.    We  have  no  statute  upon  the  subject  of  challenging 
the  array.     We  stand  upon  the  common  law  of  England,  the  common  law  of  the 
State  of  Maryland,  the  common  law  engrafted  upon  the  laws  of  the  District  of 
Colombia,  the  common  law  which  must  stand  unless  repealed  or  modified  by 
the  Btatate,  common  law  which  is  as  binding  upon  the  judgment  and  conscience 
of  this  court  as  though  it  were  statute  law.     Now,  sir,  what  is  that  common 
hiw  t     Can  any  man,  lawyer  or  not,  doubt  what  that  common  law  is  when  he 
reads  or  has  heard  read  the  case  of  O'Gonnell  and  the  Queen  ?     Oan  any  man 
doubt  that  by  the  common  law  of  England,  the  only  challenge  to  the  array  was 
for  default  in  the  man  charged  with  the  summoning  of  the  jury  ?     The  prepara- 
tion of  the  list  of  jurors  was  not  cause  of  challenge.     If  any  case  can  bring 
this  case  directly  to  judicial  decision,  that  case  of  O'Gonnell  does.     There 
was  fraud  and  ille^ity  charged  directlv  upon  the  party  making  out  the  jury 
hook,  which  was  admitted  on  the  record  as  being  fraudulent  and  illegal,  and  the 
courts  say  in  such  a  case  as  that  there  is  no  such  remedy  as  a  challenge  of  the 
vny.    They  say  admit  that  it  sounds  harsh  and  tyrannical :  what  of  that  t 
It  is  the  law  of  the  land,  and  they  go  back  to  the  year  books  of  Edward  II  and 
£dwaid  III  where  it  was  laid  down  by  Lord  Oook  that  the  challenge  to  the 


36  TRIAL   OF   JOHN   H.   8URRATT, 

array  cannot  be  allowed,  except  for  partiality  in  the  person  summoniug  the  juiy. 
Whether  there  are  other  remedies  or  not  is  not  for  me  to  say.  Whether  there 
are  other  remedies  which  in  this  instance  the  United  States  might  have  pursued 
is  not  for  me  to  say.  I  say  it  is  laid  down  by  that  highest  and  greatest  court  of 
the  present  time,  a  court  composed  (.f  the  fifteen  judges  of  England,  that  by  the 
common  law  a  challenge  to  the  array  can  only  go  to  the  disqualification  of  the 
officer  making  the  summons  and  return.  No  human  ingenuity  can  escape  the 
conclusion  of  that  case.  Argument  is  vain.  It  is  like  buffeting  the  light  waves 
against  a  great  rock,  it  falls  back  in  spray.  Theie  is  the  solid  basis,  the  deci- 
sion of  the  fifteen  judges  of  England,  the  most  solid  basis  upon  which  we  can 
rest  the  principles  of  our  liberty,  the  common  law  of  England.  It  comes  to  us 
under  that  rule  thus  strict,  thus  limited,  thus  defined,  hoary  with  age,  baptized 
in  our  own  revolution,  the  common  law  of  England. 

Now,  for  the  purposes  of  this  case  your  honor  is  asked  to  make  a  new  common 
law.  I  appeal  to  your  honor  to  vindicate  the  common  law  of  England,  and  to 
enforce  it. 

Now,  sir,  I  pass  from  that  to  another  consideration.  When  this  question  was 
proposed  yesterday  I  conceded  that  the  defendant  in  this  case,  according  to  the 
current  of  decisions,  could  not  waive  a  defect  in  the  empanelling  of  the  jury. 
I  stated,  however,  that  I  had  seen  two  well-reasoned  decisions  the  other  way. 
I  have  since  then  seen  four,  and,  unless  the  detect  appear  upon  the  record  of  the 
case,  or  unless  it  shall  clearly  appear  that  the  party  did  not  know  of  the  dis- 
qualification or  defects  he  is  as  completely  concluded  as  though  it  were  a  civil 
case,  and  he  had,  in  form,  waived  that  right  the  waiver  is  conclusive,  and  I  refer 
my  learned  brothers  upon  this  point  to  a  case  in  seventh  Wendell — with  which 
one  of  them  at  least,  Mr.  Pierrepont,  is  perfectly  familiar — ^in  which  a  man  in 
a  capital  case  moved  for  a  new  trial  on  the  ground  of  irregularity  in  empanelling 
the  jury.  The  case  is  found  on  pa^e  421.  1  read  from  the  opinion  of  the  court : 
'*  The  revised  statutes  provide  that  a  jury  for  the  trial  of  an  indictment  shall 
be  drawn  in  the  same  manner  as  is  prescribed  by  law  for  the  trial  of  issues 
of  fact  in  civil  cases,  (2  Rev.  Stats.,  734,  735 ;)  and  in  civil  cases  where  there 
IB  not  a  jury  empanelled  in  another  cause  the  statute  directs  that  the  ballots 
containing  all  the  names  of  the  jurors  returned  and  appearing  at  such  court, 
shall  be  placed  together  in  the  same  box  before  any  jury  shall  be  drawn  there- 
from, (2  Rev.  Stats.,  421,  §64.)  Here,  the  ballot  containing  the  name  of  Smith 
not  having  been  placed  in  the  box  before  the  drawing  of  the  jury  commenced, 
it  is  said  the  statute  was  violated,  and  the  prisoner  is  entitled  to  a  new  trial." 

The  language  is  so  distinct  that  no  one  can  fail  to  understand  it,  yet  the 
requirement  was  departed  from  in  this  case,  and  this  a  capital  case.  I  read 
further  from  the  opinion : 

'*  We  have  several  times  had  occasion  to  consider  the  effect  of  an  ommission 
on  the  part  of  the  officer  whose  duty  it  is  to  draw  and  empanel  jurors  to  conform 
to  the  precise  regulations  prescribed  by  law  in  that  respect,  and  we  have  uui- 
formly  held  that  this  statute,  like  many  others  of  a  similar  character,  is  to  be 
considered  as  directory  to  the  officers  merely,  and  that  a  neglect  to  conform  to 
its  provisions  will  not  ftr  #e  be  a  sufficient  ground  for  setting  aside  the  verdict 
of  such  jury  where  the  court  sees  that  the  party  cannot  have  been  prejudiced 
by  it,  (5  Cowan,  289.     7  Id.,  232.") 

Now,  I  would  like  to  know  how  a  party  would  be  prejudiced  by  trying  his 
case  before  this  jury,  but,  if  your  honor  please,  I  can  see  how  he  can  be  preju- 
diced by  summoning  talesmen  to  supply  their  places.     I  read  further  : 

"  Th«  69th  section  of  the  same  act  (2d  Rev.  Stats.,  420,)  provides  that  the 
clerk  of  the  court  shall  cause  the  names  of  the  several  persons  n^f erred  as  jurors 
by  the  sheriff,  with  their  respective  additions  and  places  of  residence,  to  be 
written  on  several  and  distinct  pieces  of  paper,  each  in  the  same  manner,  as  near 
M  may  be,  and  so  as  to  resemDle  each  other  as  much  as  possible,  and  so  that 


TRIAL  OP  JOHN   H.   8URBATT.  37 

the  names  written  thereon  sball  not  be  visible.  In  Cole  and  Perry,  (6  Cowan, 
584,)  a  motion  was  made  to  set  aside  a  verdict  on  the  ground  that  the  ballots 
containing  the  names  of  the  jnron  were  not  folded  at  all,  but  were  put  open  into 
the  box,  in  snch  manner  that  the  names  might  ea^^ilj  have  been  seen  by  the 
person  drawing  them.  On  the  other  hand  the  affidavit  of  the  clerk  who  drew 
the  jnry  was  produced,  stating  distinctly  that  be  did  not  see  the  names  of  the 
jnry  until  af^r  they  were  drawn.  The  motion  was  denied  on  the  ground  that 
the  statute  was  directory  merely  to  the  officer  drawing  the  ballots,  and  that  the 
mistake  of  the  officer  in  the  discharge  of  his  duty,  was  not  a  ground  for  setting 
aside  the  proceedings  where  no  injury  to  the  party  complaining  was  shown  or 
pretended.  The  principle  of  this  case  is  believed  to  be  fully  sanctioned  by  a 
great  variety  of  decisions  in  our  own  and  the  English  courts." 

Again,  on  page  424,  he  unes  this  language : 

•*  The  conclusion  from  these  cases  appears  to  me  to  be  this  :  that  any  mere 
informality  or  mist  ike  of  any  officer  in  drawing  a  jury,  or  any  irregularity  or 
misconduct  in  the  jurors  themselves,  will  not  be  a  sufficient  ground  ^r  setting 
aside  a  verdict,  either  in  a  criminal  or  civil  case,  where  the  court  are  satisfied 
that  the  party  complainiug  has  not  or  could  not  have  sustained  any  injury 
from  it.*' 

Again,  on  pago  426  : 

"  The  case  of  Kingvs,  Hunt,  (4  Bam  and  Aid.,  430,)  bears  a  strong  analogy 
to  the  case  at  bar.  That  was  the  case  of  an  information  for  a  libel,  before  a 
special  jury.  Ten  of  the  special  jury  attended,  and  two  talesmen  were  sworn, 
and  the  defendant  was  convicted.  He  moved  for  a  new  trial  on  the  ground 
that  the  officer  had  omitted  to  summon  the  two  special  jurymen  who  had  not 
attended,  and  it  was  contended  that  it  was  absolutely  necessary  that  all  should 
be  summoned  ;  that  the  act  of  parlaiment  was  imperative,  for  it  required  all  to 
be  Bommooed,  and  if  two  were  omitted,  so  might  any  other  number.  But  the 
eourt  unanimously  refused  the  motion,  saying  that  it  would  be  an  alarming 
principle  to  establish  that  a  verdict  could  be  set  aside  because  the  sheriff  had 
omitted  to  summon  one  jur3rman  out  of  the  whole  panel ;  that  applications  of 
this  sort  were  addressed  to  the  discretion  of  the  court ;  that  if  the  officer  had 
not  done  his  duty  he  might  be  punished  for  it,  and  if  his  omission  has  actually 
prodnced  prejudice  to  the  party,  then  the  court  might,  in  its  discretion,  prevent 
injustice  from  being  done  by  granting  a  new  trial.  In  that  case,  the  omission 
had  not  been  shown  to  have  been  prejudicial  to  the  defendant  and  therefore  the 
motion  was  refused.  This,  I  apprehend,  is  the  true  rule  to  be  collected  from  all 
the  cases." 

He  then  reviews  the  case  of  The  People  vs,  McKay,  which  was  a  capital  case, 
and  in  which  the  defendant  was  convicted  of  murder. 

*'  He  was  then  brought  into  this  court  by  habeas  corpus,  and  the  indictment 
and  proceedings  against  him  in  the  court  of  oyer  and  terminer,  were  also  re- 
turned in  obedience  to  a  certiorari,  directed  for  that  purpose.  Upon  the  papers 
thus  before  the  court,  the  counsel  for  the  prisoner  moved  an  arrest  of  judgment 
on  the  ground  that  no  venire  had  been  issued  to  summon  the  petit  jury,  and 
it  appeared  that  the  venire  issued  was  not  under  the  seal  of  the  court,  and  that 
no  official  return  had  been  made  to  it  by  the  sheriff.  It  was  admitted  by  the 
eounael  for  the  people  that  the  case  stood  precisely  as  though  no  venire  had 
been  issued,  it  having  no  seal  and  was,  therefore,  absolutely  void,  but  they  con- 
tended that  no  venire  was  necessary.  The  only  judgment  then  was  whether 
^  judgment  could  be  sustained  when  the  record  showed  that  no  venire  had 
been  issned.*' 

Judge  Spencer  says :  **  Inasmuch,  then,  as  the  venire  was  necessary  at  the  com- 
OMni  law,  and  as  the  statute  yet  requires  it  to  be  issued,  the  omission  to  issue  it  we 
mt  eoasider  an  error  apparent  on  the  record,  and  in  such  a  case,  affecting  life,  we 
do  not  feel  ourselves  anthorized  to  dispense  with  a  process  required  by  the 


38  TRIAL   OF   JOHN   H.   SURRATT. 

common  law,  and  also  by  the  statute,  although  we  may  not  be  able  to  perceive 
much  use  in  continuing  it."  The  deci^on  proceeded  on  the  ground  that  the 
error  was  apparent  on  the  record,  and  the  court  could  not  disregard  it. 

I  might  refer  your  honor  to  other  cases  equally  in  point,  but  these  are  suffi- 
cient for  my  purposes.  I  therefore  say,  if  the  court  please,  that  there  is  no 
error  apparent  on  the  record  of  the  court  in  this  case.  There  is  no  error  show- 
ing any  irregularity  in  making  out  these  listp,  in  preparing  the  jury-box,  in 
opening  the  jury-box,  in  di-awing  the  jurors,  there  is  no  error  of  record,  and  if 
the  case  should  go  to  trial  advertised  as  the  defendant  has  been  by  the  pro- 
ceedings now  under  consideration,  he  would  be  bound  by  that  verdict  as  eflPect- 
ually  as  if  every  form  of  law  had  been  complied  with.  There  is  no  reason, 
then,  of  public  justice;  there  is  no  reason  of  public  sentiment,  for  that  has 
been  invoked ;  there  is  no  reason  affecting  the  public  at  large  which  could 
make  a  change  in  this  case  from  the  ordinary  course  of  proceedings  since  the 
passage  of  the  act  of  18G2  necessary  or  proper,  but  there  is  every  inducement 
which  can  operate  upon  the  mind  or  conscience  of  the  judge  to  continue  this 
trial  now  with  this  free,  unembarrassed,  impartial  jury,  and  of  not  submitting 
the  defendant  to  all  the  disadvantages  which  the  act  of.  Congress  was  intended 
to  remove  and  subject  the  defendant  to  trial  by  a  jury  which  is  denounced  by 
the  act  of  Congress  itself. 

Now,  if  your  honor  please,  a  word  only  as  to  the  construction  of  this  statute. 

Mr.  PiEBBEPONT.  I  understood  you  to  argue  that  in  England  there  was  no 
statute  having  any  eflPect  upon  the  empanelling  of  the  jury. 

Mr.  Bradley.  I  did  not  say  that. 

Mr.  PiERBEPONT.  I  so  Understood  you. 

Mr.  Bradley.  What  I  stated  was,  that  there  is  no  statute  in  England 
touching  the  question  of  a  challenge  to  an  array. 

Mr.  PiBRREPONT.  I  so  Understood  you.  That  is  the  very  point  to  which  I 
wish  to  call  your  attention.  I  do  so  because  I  supposed  you  would  desire  to 
answer  it.  If  you  will  turn  to  Chitty's  Criminal  Law,  page  537,  you  will  find 
challenges  are  of  two  kinds  : 

"Challenges  for  cause  are  of  two  kinds:  1st.  To  the  whole  array.  2d.  To 
individual  jurymen.  To  challenge  the  array  is  to  except  at  once  to  all  the 
jurors  in  the  panel  on  account  of  some  original  defect  iu  making  the  return  to 
the  venire." 

Mr.  Bradley.  Now,  if  the  coui-t  please,  I  am  very  much  obliged  to  the  gen- 
tleman for  furnishing  me  with  that.  Now,  if  the  gentleman  will  find  me  a  statute 
authorizing  it,  I  will  be  obliged. 

Mr.  PiERREPOi\T.  If  you  will  turn  over  a  page  or  so  you  will  find  it. 

Mr.  Bradley.  I  will  turn  to  that  directly.  That  is  the  common  law.  If 
your  honor  will  turn  back  to  the  time  of  second  and  third  Edwards,  to  the  "  Year 
books,''  you  will  find  that  it  was  common  law  then.     Now  I  proceed,  sir  : 

"  It  is  either  a  principal  challenge  or  for  favor,  the  former  of  which  is  founded 
on  some  manifest  partiality,  and  is  therefore  decisive,  while  the  grounds  of  the 
latter  are  less  certain,  and  left  to  the  determination  of  triers  in  the  manner  we 
shall  state  hereafter.  The  legitimate  causes  of  a  principal  challenge  are  not 
very  numerous.  Thus,  if  the  sheriff  be  actually  prosecutor,  or  the  party 
aggrieved,  the  an*ay  may  be  challenged,  though  no  objection  can  be  taken  in 
arrest  of  judgment.  So,  if  the  sheriff  bo  of  actual  aifinity  to  either  of  the 
parties,  and  the  relationship  be  existing  at  the  time  of  the  return — if  he  return 
any  individual  at  the  request  of  the  prosecutor  or  the  defendant,  or  any  person 
he  believes  to  be  more  favorable  to  one  side  than  to  the  other — ^if  an  action  of 
battery  be  depending  between  the  sheriff  and  the  defendant,  or  if  the  latter 
have  an  action  of  debt  against  the  former — the  array  may  be  quashed  on  the 
presumption  of  partiality  in  the  offiicer.     So,  also,  if  the  sheriff,  or  his   bailiff 


TRIAL   OF  JOHN   H.   SURRATT.  39 

who  makes  tbe  retarn,  is  under  the  distress  of  the  partj  indicted,  or  indicted,  or 
has  any  pecuniary  interest  in  the  eveiU,  or  his  counsel,  attorney,  servant,  or  arbi- 
trator, in  the  same  cause,  a  priucipsu  challenge  will  be  admitted.  And,  in 
general,  the  same  reasons  which  we  have  already  seen  would  cause  it  to  be 
directed  to  the  coroners  or  elisors,  will  also  be  sufficient  to  quash  the  array 
when  partiality  may  reasonably  be  suspected.  For  all  these  causes  of  sus- 
picion the  king  may  challenge  as  well  as  the  defendant." 

Every  one  of  these  are  cases  personally  affecting  the  sheriff — every  one  of 
them.     Now,  we  go  a  step  further : 

''  Bat  besides  these,  the  default  of  the  sheriff  will  be  sometimes  a  ground  of 
principal  challenge  to  the  array.  Thus,  if  the  array  be  returned  by  the  bailiff 
of  a  franchise,  and  the  sheriff  return  it  as  from  himself,  the  return  will  be  bad, 
because  the  party  will  lose  his  challenge,  though  if  the  sheriff  return  one  from 
tbe  liberty,  it  will  suffice,  and  the  lord  of  the  franchise  will  be  compelled  to 
resort  to  his*  action  against  him." 

Was  not  that  the  default  of  the  sheriff?  Was  it  not  charged  against  him  that 
he  had  failed  to  discharge  his  duty,  aud  summoned  the  commoners,  when  he 
was  bound  to  summon  the  knights  ?  It  was  the  default  of  tbe  sheriff — his  per- 
sonal misconduct — all  of  them  looking  to  the  default  or  misconduct  of  the  re- 
taming  officer. 

The  Court.  Mr.  Bradley,  does  the  default  direct  itself  to  the  summoning 
power  of  the  sheriff,  or  to  the  selecting  power  of  that  officer  ? 

Mr.  Bradlbv.  To  the  summoning  power.  It  refers  to  both,  your  honor,  but 
it  must  be  the  act  of  the  sheriff.  There  is  a  middle  stage,  sir,  and  there  is  where 
we  are  to  go.  The  sheriff  is  the  only  party  who  is  responsible  at  the  common 
law,  and  the  statute  has  failed  to  provide  a  remedy  unaer  the  new  act  of  Con- 
gress. In  England,  in  the  case  of  O'Connell  and  the  Queen,  the  statute  pro- 
vided the  mode  of  selecting  and  making  up  the  jury  book,  and  the  whole  duty 
of  the  sheriff  was  to  select  jurors  out  of  that  book.  There  was  no  charge  of  mis- 
conduct against  the  sheriff,  and  while  all  the  anterior  proceedings  were  declared 
to  be  illegal,  yet  the  court  says,  "You  charge  nothing  against  the  sheriff  in 
making  his  return,"  and  unless  you  do,  this  form  of  redress  cannot  avail  you. 
The  court  say  they  may  have  a  remedy,  but  the  question  is  as  to  the  form  of 
the  remedy.  I  need  not  say  to  this  honorable  court  that  the  forms  of  the  law 
are  as  much  of  the  substance  of  the  law  as  the  law  itself.  The  forms  of  the 
remedies  to  which  men  resort  are  just  as  binding  upon  them  as  the  highest  statu- 
tory obligations.  Courts  are  bound  by  the  forms  which  men  adopt  and  deter- 
mine according  to  the  law  respecting  those  forms.  My  attention  is  called  to  the 
passage  from  the  opinion  of  the  Chief  Justice  in  that  case : 

''The  sheriff,  therefore,  being  neither  unindiffereut  nor  in  default,  the  prin- 
dple  upon  which  the  challenge  to  the  array  is  given  by  law  does  not  apply  to 
the  present  case." 

The  statute  has,  in  fact,  taken  from  the  sheriff  that  duty  of  selecting  jurymen 
which  the  ancient  law  imposed  upon  him,  aud  has  substituted  instead  a  new  ma- 
ehinery,  in  the  hands  of  certain  officers,  by  whom  the  list  is  to  be  prepared  for 
the  sheriff's  use. 

If  the  sheriff,  when  the  jurors'  book  was  furnished  to  him,  had  acted  improp 
erly  in  selecting  the  names  of  the  jury  from  the  book,  such  misconduct  would 
liave  been  a  good  cause  of  challenge  to  the  array. 

"But  that  which  is  really  complained  of  is,  that  the  material  of  the  book  out 
of  which  the  jury  is  selected  by  the  sheriff,  and  for  which  the  sheriff  is  not  re- 
sponsible, has  been  improperly  composed.  It  is  not,  therefore,  a  ground  of 
challenge  to  the  array.  And  further,  it  is  manifest  that  no  object  or  advantage 
could  have  been  gained  if  the  challenge  had  been  allowed ;  for  if  the  challenge 
lud  been  allowed  the  jury  process  would  have  been  durected  to  some  other 


40  TRIAL   OF   JOHN   H.   SURRATT. 

oflScer,  who  would  have  been  obliged  to  choose  his  jnry  out  of  the  very  same 
special  jurors'  book  as  that  which  the  shariff  had  acted  on,  for  no  other  was  in 
existence.  The  same  objection  might  again  be  made  to  the  jury  panel  secondly 
returned,  and  so  toties  quoties;  so  that  the  granting  of  this  challenge  would,  in 
effect,  amount  to  the  preventing  the  case  from  being  brought  to  trial  at  all. 
The  very  same  difficulty  might  occur  in  England,  if,  through  accident,  careless- 
ness, or  design,  a  single  jury  list,  directed  to  be  returned  by  the  overseers  of 
any  parish  within  the  county,  were  not  handed  over  to  the  clerk  of  the  peace, 
or  if  a  single  name  should  have  been  omitted  in  any  list  actually  delivered  to 
the  clerk  of  the  peace.  The  jury  book  must  necessarily,  in  either  case,  be  de- 
ficiently made  up.  But  if  such  deficiency  were  allowed  to  be  a  ground  of  chal- 
lenge to  the  array,  the  business  of  every  assize  in  the  kingdom  might  effectually 
be  stopped.  That  there  must  be  some  mode  of  relief  for  an  injury  cocasioned 
by  such  non-observance  of  the  directions  of  an  act  of  Parliament,  is  uncdeniable 
but  the  only  question  before  us  is,  whether  it  is  the  ground  of  challenge  to  the 
array ;  and  we  all  agree  in  thinking  it  is  not,  and  therefore  we  answer  this 
question  in  the  negative." 

That  is  what  we  complain  of. 

Mr.  PiBRRBPONT.  We  make  no  complaint  of  the  sheriff.  His  duty  is  simply 
ministerial. 

Mr.  Bradluv.  It  is  not,  therefore,  a  ground  of  challenge  to  the  array  that 
they  do  complain  of. 

The  fifteen  judges  in  England  say  that  is  no  ground  of  complaint.  The 
learned  gentlemen  here  say  it  is  ground  of  complaint.  They  say  it  is  true  thBt 
they  make  no  complaint  of  the  sheriff  or  marshal,  because  he  is  only  performing 
a  ministerial  duty,  but  they  go  back  to  the  material  out  of  which  the  list  is  made, 
and  the  court — the  fifteen  judges — say  that  it  is  not  ground  of  complaint.  I 
admit  that  my  learned  friend  on  the  other  side  has  argued  this  case  with  great 
ability,  but  I  take  the  opinion  of  these  fifteen  judges  in  preference  to  his  argu- 
ment. These  judges,  I  repeat,  say  that  it  is  not  ground  of  complaint,  while  my 
learned  friend  says  it  is  ground  of  complaint. 

Then,  if  your  honor  please,  if  I  am  right  in  my  reading  of  these  books — that 
where  the  cause  of  complaint  does  not  exist  upon  the  record,  and  a  man  is  tried 
for  his  life,  he  cannot  take  advantage  of  that  defect  after  his  trial,  except  upon 
clear  proof  that  he  was  ignorant  of  the  defect  at  the  time  of  the  trial.  If  I  am 
right  in  that,  then  I  say  they  may  proceed  to  trial  at  once.  The  defendant,  as 
he  has  the  right  to  do,  waives  the  objection,  notwithstanding  the  great  value  put 
upon  the  life  of  an  "  assassin." 

Now,  if  the  court  please,  I  will  proceed  one  step  fiirther,  and  I  have  already 
occupied  much  more  time  than  I  allowed  myself.  In  illustrating  this  law,  my 
learned  brother  says :  "  Suppose  this  board —we  will  call  them  a  board,  though  they 
seem  to  be  a  very  soft  kind  of  board  from  what  I  can  understand  from  the  other 
side,  that  they  did  not  discharge  their  duty  any  better — suppose  this  board  had 
selected  a  panel  of  black  men,  and  the  panel  had  come  in,  all  woolly- headed 
Africans — well, it  would  not  be  agreeable  to  me  I  admit — but  is  there  no  remedy  ? 
The  remedy  is  not  by  challenging  the  array.  That  is  all  I  have  to  say  on  that 
point. 

Mh  PiBRBEPONT.  It  would  not  be  the  sheriff's  fault? 

Mr.  BuADLBV.  It  would  not  be  the  sheriff's  fault,  and,  therefore,  it  is  not  to 
challenge  the  array.  But  there  would  soon  be  found  an  entire  remedy — very 
soon.  Suppose  they  are  not  tax  payers,  and  they  challenge  the  array,  and 
bring  in  their  evidence  to  prove  the  fact  that  they  are  not  tax-payers.  There  is 
no  fault  on  the  part  of  the  marshal,  and,  therefore,  they  cannot  challenge  the 
array  by  any  process  known  to  the  English  and  the  American  common  law. 
They  may  have  one,  and  another  remedy,  but  it  does  not  follow  that  they  have 


TRIAIr  OF  JOHN   H.   SURRATT.  41 

the  remedy  of  the  challenge  of  the  arraj;  and  there  is  the  mistake,  the  fatal 
mistake  oa  the  other  eide. 

But  suppose,  if  year  honor  please,  that  this  motion  prevail,  what  then  ?  The 
learned  ^ntleman,  taking  np  this  statnte.  reads  as  follows : 

"  Sbction  6.  "^  *  *  Bat  in  a  capital  case,  where  the  said  panel  shall  have 
been  exhausted  by  reason  of  challenge  or  otherwise,  the  court  before  whom  such 
capital  case  is  pending  may,  in  its  discretion,  order  additional  names  to  be  drawn ; 
and  if  all  the  names  in  the  box  shall  have  been  drawn  out  and  no  jury  found, 
the  court  may  order  the  marshal  to  summon  talesmen  until  a  jury  shall  be  found." 

And,  again : 

"Sbction  7.  *  *  *  And  if  at  any  time  there  should  not  be,  by  reason 
of  challenge  or  otherwise,  a  sufficient  number  of  jurors  to  make  up  the  panel, 
the  court  shall  order  the  marshal  to  summon  as  many  talesmen  as  are  necessary 
for  that  purpose." 

Persons  selected  as  jurors  having  the  same  qualifications 

Mr.  PiBBRBPONT.  Tax-payers,  and  having  the  other  qualifications. 

Mr.  Bradlby.  Yes,  sir;  but  that  is  not  all.  I  will  read  the  language  of  the 
statute : 

"  And  if  the  persons  selected  as  jurors  do  not  attend,  the  court  may  order  the 
marshal  to  summon  other  respectable  tax-payers,  possessing  the  other  legal 
qualifications,  to  supply  the  deficiency." 

After  reading  these  sections,  the  gentleman  turns  back  to  the  first,  and  says 
"  tax-payers  "  is  used  there ;  **  white  male  citizens  "  is  also  used  there.  He  did 
Dot,  however,  read  to  your  honor  the  eighth  section,  which  prescribes^ the  qualifi- 
cations of  jurors.     What  are  they  ? 

**  That  no  person  shall  be  competent  to  act  as  a  juror  unless  he  be  a  citizen  of 
the  United  States,  a  resident  of  the  District  of  Columbia,  over  twenty-one  and 
under  sixty-five  years  of  age,  a  good  and  lawful  man  who  has  never  been  con- 
victed of  a  felony  or  misdemeanor  involving  moral  turpitude." 

Now,  the  previous  sections  require  that  he  should  be  a  tax-payer  also,  and  I 
ask  my  learned  friend  to  show  me  where  it  says  he  shall  be  a  '*  white  man." 
Have  I  not  a  right  then  to  resist  this  motion  ?  Is  there  not  every  inducement 
which  a  white  man  can  have  to  resist  it  I 

Mr.  PiBRRBPONT.  You  will  find  the  term  "white  male  citizen"  in  the  sev- 
enth line  of  the  first  section. 

Mr.  Bradlby.  Oh  !  I  know,  but  that  is  when  the  jury  is  to  be  listed.  When 
tbe  register  of  the  city  of  Washington,  the  clerks  of  Georgetown,  and  the 
county,  are  to  make  out  their  lists  they  are  limited  to  white  men. 

The  District  Attorn  by.  Does  not  that  define  the  description  of  persons  ? 

Mr.  Bbadlby.  Yes  ;  but  when  the  marshal  goes  to  summon  talesmen,  how  is 
it  ?  The  statute  simply  says  **  must  be  tax-payers,  and  possess  the  other  legal 
qoalifications." 

Mr.  PiBRRKPONT.  The  first  section  speaks  of  certain  qualifications. 

Mr.  Bradlby.  No,  sir ;  those  are  exactions,  required  when  the  lists  are  be- 
ing made  out,  not  qualifications. 

I  think  I  can  see  where  this  thing  is  drifting.  It  is  not  delay  that  is  sought, 
but  they  have  another  motive  more  powerful  than  delay.  It  is  to  get  another 
jury  in  the  place  of  an  honest  jury  already  summoned.  Why,  sir,  the  gentle- 
man talks  about  the  misgivings  in  the  public  prints.  I  do  not  know  that  he 
bas  seen  what  I  hold  in  my  hand,  an  article  from  this  place  denouncing  this 
jury  because  sixteen  of  them  are  Oatholics,  as  they  say,  but  there  it  is — such  an 
tttlele  has  been  written  and  published  in  the  New  York  Herald.  I  know,  toOt 
tbat  the  same  article,  published  yesterday  morning,  foreshadows  the  fact  that 
tbeie  gentlemen  were  to  oome  into  court  on  the  day  they  did,  and  make  the 
identical  motion  that  they  have  submitted  here. 


42  TRIAL   OF  JOHN  H.   8UfiBATT« 

Mr.  Merrick.  And  the  writer  states  the  ground  of  the  motion. 

Mr.  Bradley.  Yes,  sir ;  states  the  ground  of  the  motion.  It  looks  to  me  as 
if  it  came  from  very  near  home. 

Mr.  Pierrepont.  What  does  it  state  as  the  ground  of  the  motion  ? 

Mr.  Bradley.  There  it  is,  (handing  a  copy  of  the  New  York  Herald  to  Mr. 
Pierrepont,)  just  the  same  ground  precisely  as  was  stated  here,  that  it  was  not 
a  lawful  panel. 

Mr.  Pierrepont.  Oh !  (laughingly.) 

Mr.  Bradley.  But  I  do  not  mean  to  he  led  off  in  this  way ;  and  I  beg  the 
pardon  of  your  honor  for  being  led  away  from  what  is  really  a  very  important 
and  grave  question,  to  which  we  should  confine  ourselves.  I  repeat  that  I  do 
not  mean,  if  I  can  help  it,  to  be  led  into  the  discussion  of  any  outside  matters, 
but  will  endeavor  to  confine  myself  to  the  pure  proposition  of  law. 

Now,  sir,  let  us  look  at  this  statute.  The  act  of  1862  says  :  "  It  shall  be  the 
duty  of  the  register  of  Washington  city,  and  of  the  respective  clerks  of  the  city  of 
Georgetown,  and  the  levy  court  of  Washington  county,  in  the  District  of  Colum- 
bia, within  one  month  after  the  passage  of  this  act,  and  on  or  before  the  first 
day  of  February,  in  each  year  thereafter,  to  make  a  list  of  such  of  the  white 
male  citizens,  tax-payers,  residing  within  their  respective  jurisdictions,  as  they 
shall  judge  best  qualified  to  serve  as  jurors  in  the  courts  of  said  District,  in 
which  lists  may  be  included,  in  the  discretion  of  the  officer  making  the  same, 
the  names  of  such  qualified  persons  as  were  on  the  list  of  the  previous  year,  but 
did  not  serve  as  jurors,  and  the  lists  thus  made  out  by  the  register  and  clerks 
aforesaid  shall  be  kept  by  them,  respectively,  and  be  delivered  over  to  their 
successors  in  office." 

That  is  the  duty  of  these  parties.  But  when  the  polls  are  exhausted,  when 
the  jury  box,  or  the  panel  is  exhausted,  drawn  from  the  jury  box,  then  the 
marshal  shall  go  out  and  summon  "  other  respectable  tax-payers,  possessing  the 
other  legal  qualifications,  to  supply  the  deficiency.''  And  then  the  very  next 
clause  is :  "  And  if  at  any  time  there  should  not  be,  by  reason  of  challenge,  or 
otherwise,  a  sufficient  number  of  jurors  to  make  up  the  panel,  the  court  shall 
order  the  marshal  to  summon  as  many  talesmen  as  are  necessary  for  that  pur- 
pose." Then  in  the  next  section  it  is  provided :  **  That  no  person  shall  be 
competent  to  act  as  a  juror  unless  he  be  a  citizen  of  the  United  States,  a  resident 
of  the  District  of  Columbia,  over  twenty -one  and  under  sixty-five  years  of  age, 
a  good  and  lawful  man,  who  has  never  been  convicted  of  a  felony,"  and  so  on. 
Now,  sir,  I  agree  that  these  officers  in  selecting  their  jurors  are  to  confine  them- 
selves to  "  white  male  citizens,"  but  I  say  when  that  panel  is  exhausted,  aud 
the  marshal  goes  out  from  this  court  to  summon  talesmen,  he  has  to  summon 
citizens  of  the  United  States,  between  twenty-one  and  sixty-five  years  of  age, 
tax-payers,  resident  in  the  city  of  Washington. 

Mr.  Pierrepont.  He  is  confined  to  white  men. 

Mr.  Bradley.  No,  sir. 

Mr.  PiEUREPOxNT.  That  is  what  we  hold.  That  is  one  of  the  first  qualifica- 
tions mentioned.     He  could  not  summon  any  other. 

Mr.  Bradley.  No,  sir.  Nowhere  in  the  statute  will  you  find  the  term 
"  white  male  citizen"  repeated. 

The  Court.  Perhaps  the  counsel  might  reverse  his  position  if  the  marshal 
should  happen  to  summon  such  on  the  next  panel.     [Laughter.] 

Mr.  Bradley.  Then,  sir,  I  might  argue  the  other  way.  The  question  is  not 
settled  yet,  and  I  am  only  stating  my  present  convictions.  Argument  by  coun- 
sel on  the  other  side  might  disturb  those  convictions  a  good  deal,  and  cause  me 
to  go  over  to  the  other  side.  [Laughter.]  If  the  court  please,  that  is  the 
"  chance"  if  the  motion  be  granted.  And  I  would  here  ask  the  counsel,  if  the 
marshal  should  go  out  with  the  order  of  this  court  to  summon  talesmen,  *'  citi- 


TRIAL   OF  JOHN  H.   SURRATT.  43 

Eens  of  the  United  States,  between  twenty-one  and  sixty -fi^e  years  of  age,  tax- 
payers, resident  in  the  city  of  Washington,"  and  should  return  here  a  panel  of 
colored  men,  we  could  challenge  the  array. 

Mr.  PiBRRBPONT.  We  would. 

Mr.  Bradlby.  Gentlemen,  I  don't  want  to  give  you  the  chance;  I  don't 
want  to  put  your  virtue  to  so  severe  a  test.   [Laughter.) 

One  word,  sir,  as  to  the  construction  of  this  statute  and  I  leave  this  question. 
Is  it  directory  or  is  it  not  ?  In  the  cases  referred  to  in  7th  Wendell,  we  find 
that  where  certain  proceedings  are  required,  not  essential  to  the  substance,  and 
they  be  not  observed,  non-compliance  will  not  vitiate  the  list  of  the  jury;  they 
will  not  vitiate  the  panel  of  the  jury.  Where  a  man  is  trie4  for  a  capital  offence 
by  a  jury,  all  of  whose  names  were  not  put  into  the  box  before  they  began  to 
draw  the  panel,  and  the  statute  in  terms  required  that  they  should  be  put  into 
the  box,  the  court  said  that  the  statute  was  directory. 

Now  let  us  look  at  this  statute.  It  provides  that  the  register  of  the  city  of 
Washington  shalUmake  out  a  list  of  persons  whom  he  deems  best  qualified  as 
jnrors ;  the  clerks  of  Georgetown  ana  the  county  the  same.  It  says,  **  the 
officers  aforesaid  shall  select."  The  gentlemen  say  it  was  a  power  conferred 
upon  these  three  men  jointly ;  each  man  must  carry  to  that  meeting  a  greater 
Dumber  than  the  amount  to  be  selected.  The  register  of  Washington  must 
carry  more  than  four  hundred,  because  out  of  his  list  is  to  be  selected  four 
hundred,  and  so  as  to  the  others.  If  he  carries  only  four  hundred  there  cannot 
be  much  of  a  selection.  He  has  then  to  carry,  according  to  their  construction, 
more  than  four  hundred,  in  order  that  the  other  two  may  select.  The  statute 
says  he  shall  make  out  a  list  of  those  whom  he  deems  best  qualified  for  jurors, 
and  each  of  the  others  do  the  same ;  and  the  officers  aforesaid  shall  select  from 
the  list  made  out  by  the  register  of  Washington,  four  hundred  names,  and  from 
the  others  so  many.  They  say  that  that  is  wholly  illegal  and  void,  unless  they 
all  three  unite  in  making  this  selection.  Is  it  so,  or  is  this  provision  merely  direc- 
tory ?  Does  the  failure  of  the  three  to  act  jointly  vitiate  the  panel  or  not  ]  Is  it  a 
power  granted  to  three  to  beexcercised  by  the  three  together,  or  can  it  be  exercised 
by  each  one  for  himself?  Suppose  only  two  of  them  met — suppose  there  is  no  clerk 
alive  in  Georgetown,  or  in  the  county,  and  the  time  comes  round  when  they  are  to 
make  the  selection,  what  are  we  to  do  then  ?  We  cannot  have  any  jury  in  that  part 
of  the  District ;  you  cannot  have  any  jury.  If  it  is  a  power  given  to  the  three,  each 
and  all  three  must  unite  in  exercising  it.  Two  cannot  exercise  it.  Nay,  more : 
Buppose  they  are  all  three  together,  and  two  of  them  agree  upon  a  man  while  a  third 
diners,  what  is  to  be  done  ?  There  is  no  power  given  in  that  case.  The  inference 
is  that  the  majority  shall  govern.  That,  I  suppose,  is  an  ordinary  rule.  There  is  no 
provision  for  it.  What  then  was  the  intention  of  the  legislature  ?  It  was  to  get  a 
Ust  of  jurors  prepared  by  men  not  concerned  in  trials  in  court,  criminal  or  civil, 
not  partisans,  but  men  bound  by  their  official  position  to  do  justice,  and  to  make 
out  a  list  equally  as  they  could  between  all  the  contending  parties.  Each  man 
makes  out  his  list;  he  has  exercisad  his  best  judgment.  Is  he  prepared  to 
submit  that  judgment  to  the  other  parties  or  not  ?  I  mean,  is  the  law  mandatory 
or  is  it  directory  ?  Does  anybody  complain  ?  No.  Does  anybody  say  there 
is  any  irregularity  except  this  misapplication  of  the  law  ]  No.  What  does  Judge 
Savage  say  in  the  ca«e  I  read  from  7th  Wendell :  "  That  where  it  was  by  the 
mistaike  of  the  parties,  it  does  not  usually  vitiate."  There  must  be  corruption, 
and  the  corruption  must  be  alleged  and  proved ;  but  this  is  not  the  mode  by 
which  that  charge  of  corruption  can  be  investigated  and  established.  There  is 
a  mode,  undoubtedly,  by  which  the  United  States  might  have  reached  any 
iiregnlarity,  bat  it  cannot  be  by  this  process  of  challenging  the  array.  The 
Btatnte,  then,  means  to  get  an  honest  and  unbiased  jury,  and  although  there 
were,  and  are  now,  and  always  will  be,  persons  residing  in  the  same  town, 


44  TRIAL   OF  JOHN   H.   SUBHATT. 

differing  in  their  political  sentiments — some  for,  and  some  against,  the  govern- 
ment; some  sympathizing  and  some  not  sympathizing — yet  Congress  has 
invested  these  men  with  discretion  ;  has  given  them  a  directory  authority,  and 
if  these  officers  had  made  a  mistake  in  the  exercise  of  that  authority  thus  given 
to  them,  and  the  law  is  directory,  then  that  mistake  does  not  vitiate  the  panel. 

May  it  please  your  honor,  the  argument  of  ab  inconvenient^  is  a  very  appro- 
priate one  here.  If  it  he  true  that  this  whole  list  of  jurors  is  illegal,  and  cannot 
be  passed  upon,  I  ask  your  honor  where  are  you  going  to  get  a  jury  until  next 
February. 

Mr.  PiBRRBPONT.  The  statute  provides  the  mode. 

Mr.  Braiilby.  I  am  answered  that  the  statute  provides  the  mode.  Why. 
if  your  honor  please,  does  not  this  law  affect  the  civil  as  well  as  the  criminal 
court?  Does  the  statute  provide  for  that  ?  Did  Congress  mean  when  they  said, 
that  if  the  panel  is  exhausted  the  court  should  order  the  marshal  to  empannel  a 
jury,  that  the  court  should  order  a  jury  to  be  summoned  when  there  has  been 
no  jury  returned  or  empanr^elled  or  listed  ?  Can  it  be  pretended  here,  if  the 
court  pleases,  that  if  these  officers,  the  register  of  the  city  df  Washington,  the 
clerk  of  Georgetown,  and  the  clerk  of  the  county,  had  never  met  to  perform  the 
duty  under  that  law,  that  the  court  could  have  ordered  a  jury  to  be  summoned  or 
the  marshal  to  go  out  and  summon  talesmen  7  It  is  made  to  depend  entirely 
upon  the  exhaustion  of  a  **  panel,"  and  a  "panel"  means  a  "legal  panel."  This 
list  of  names  is  no  panel  unless  it  is  legally  here.  There  is  no  return  of  the 
jurors,  because  the  list  of  jurors  put  into  the  clerk's  hands,  according  to  their 
theory,  is  no  list,  and  there  being  no  list  and  no  return,  there  is  no  panel,  and 
there  being  no  panel  it  cannot  be  exhausted,  and  if  it  is  not  exhausted  then  the 
marshal  cannot  summon  talesmen. 

Mr.  Pibrrbfont.  Our  argument  is,  that  the  panel  is  illegally  summoned. 

Mr.  Bradlby.  Why,  may  it  please  your  honor,  an  illegal  panel  is  no  panel 
at  all.  The  very  ground  upon  which  they  proceed  is,  that  there  is  no  jury  here. 
If  there  is  a  jury  here  let  them  go  on  and  try  the  case.  It  is  because  there  is  no 
jury  here  that  they  seek  now  to  summon  a  jury  here,  and  there  is  no  jury  here 
they  say  because  these  officers  failed  to  discharge  their  duty  according  to  law.  to 
make  their  returns  according  to  law.  Therefore  there  being  no  return,  no  panel,  I 
ask  how  the  panel  can  be  exhausted.  That  is  the  question.  Let  me  read  that  pas- 
sage again.     I  believe  my  learned  friend  has  confounded  words  here. 

*  *  '*  In  a  capital  case,  where  the  said  panel  shall  have  been  exhausted  by 
reason  of  challenge  or  otherwise,  the  court,  before  whom  such  capital  case  is 
pending,  may,  in  its  discretion,  order  additional  names  to  be  drawn  ;  and  if  all  the 
names  in  the  box  shall  have  been  drawn  ou  tand  no  jury  found;  the  court  may 
order  the  jury  to  summon  talesmen  until  a  jury  shall  be  found,  and  if  a  jury  be  re- 
ouired  for  the  circuit  court,  the  twenty-six  persons  whose  names  shall  first  be  drawn 
snail  constitute  the  jury  for  that  term,and  the  names  of  the  persons  drawn  as  afore- 
said shall  not  be  again  placed  in  such  box  for  the  period  of  two  years.  If  any 
person,  whose  name  is  so  drawn,  shall  have  died  or  removed  from  the  district,  or 
has  become  otherwise  disabled  from  serving  as  a  juror,  the  said  register  and 
clerks  shall  draw  from  the  box  another  name  who  shall  serve  instead,  and  after 
the  requisite  number  of  jurors  shall  have  been  so  drawn,  the  said  box  shall  be 
again  sealed  and  delivered  to  the  clerk  of  the  circuit  court  as  aforesaid." 

Now,  sir,  if  there  are  no  such  persons  legally  selected,  drawn,  or  summoned, 
how  can  there  be  a  panel.  How  can  the  marshal  proceed  to  summon  a  panel  in 
the  place  of  that  exnausted  by  challenge  or  otherwise,  when  there  is  no  panel 
to  be  so  exhausted.  He  cannot  do  it,  in  my  humble  view.  1  think  the  intention 
of  Congress  in  this  matter  is  perfectly  clear,  and,  therefore,  I  shall  not  further 
discuss  that  question.  I  contend,  therefore,  that  there  is  no  ground  upon  which 
this  challenge  of  array  can  stand. 


TRIAL   OF  JOHN   H.   8URRATT.  45 

The  District  Attorn  by.  I  do  not  rise  for  the  purpose  of  argaing  the  mo- 
tion before  the  court,  but,  with  the  permission  of  your  honor,  and  my  learned 
friend,  simply  to  say  a  word  or  two  regarding  a  certain  statement  in  one  of  the 
newspapers  of  the  day  to  which  my  attention  has  just  been  called.  It  is  an 
item  in  the  New  York  Herald,  purporting  to  be  telegraphed  from  this  city.  The 
article  is  not  very  complimentary  to  myself,  but  as  my  friend  is  spoken  of  in 
very  high  terms,  I  am  not  disposed  to  quarrel  with  the  writer,  for,  as  a  generous- 
hearted  man,  I  am  more  anxious  for  the  reputation  of  my  friend  than  I  am  for 
my  own.  What  is  intimated  in  it,  I  would  not  think  of  sufficient  im- 
portance to  be  called  to  the  attention  of  the  court,  were  it  not  that  allusion  has 
been  made  to  it  here  by  the  learned  counsel  who  last  addressed  your  honor  He 
stated  that  there  was  some  reason  not  made  known  for  the  motion  which  we 
have  submitted.     I  deem  it  due  to  myself  to  say 

Mr.  Bradley.  I  beg  your  pardon  if  I  have  said  any  thing  wrong.  I  thought 
it  was  a  fair  retort  upon  what  was  said  by  Judge  Pierrepont. 

The  District  Attornby.  Notwithstanding  the  disclaimer  of  the  gentleman 
to  impute  any  wrong  motive  to  us  in  submitting  the  motion  now  before  your 
honor,  I  think,  inasmuch  as  public  reference  has  been  made  to  it  here,  it  is  due  to  my 
position  before  the  country  to  say  a  word.     I  will  here  say,  then,  that  chore  is 

00  one  who  would  more  earnestly  and  sincerely  deprecate  any  appeal  to  religious 
prejudices  than  myself.  Politicians  may  speak,  think,  and  act  as  they  please, 
bat  for  my  part  I  would  drive  from  the  halls  of  justice  the  demon  of  party  spirit 
and  religious  fanaticism.  1  trust  in  Ood  the  dav  will  never  come  when  a  judge, 
or  a  jury,  will  be  influenced  in  the  discharge  of  the  highest  and  most  solemn  duty 
that  could  possibly  be  devolved  upon  human  beings  by  political  or  religious 
considerations. 

In  regard  to  the  construction  which  has  been  given  by  the  learned  gentleman 
to  that  part  of  the  act  which  invests  the  court  with  power  to  order  the  marshal, 
when  the  panel  has  been  exhausted  by  challenge  or  otherwise,  to  summon  jurors, 

1  deem  it  also  proper  to  say  that  the  marshal  would  be  entrusted  with  power, 
with  a  right,  to  summon  no  other  than  white  persons.     All  I  desire 

Mr.  Bradley.  I  beg  your  honor's  pardon,  but  this  subject  has  been  very 
fully  discussed  by  counsel  on  botb  sides,  and  I  hope  no  fuither  discusion  will 
take  place. 

The  District  Attorney.  Very  well,  sir,  I  am  satisfied.  I  only  intended 
to  say  a  word  or  two. 

The  Court.  I  do  not  see  how  it  would  be  possible  for  me  to  render  my  opin- 
ion on  this  question  to  day.  We  have  a  great  deal  of  business  before  the  su- 
preme court,  sitting  in  branc,  and  we  have  a  session  to-morrow  for  the  purpose  of 
concluding  that  business  tor  the  term.  The  court  is  to  meet  at  2  o'clock  on 
that  day,  and,  as  it  is  expected  several  very  important  decisions  will  then 
be  rendered,  it  is  proper  and  necessary  that  opportunity  should  be  afforded  for 
consultation  with  regard  to  them.  I  will  endeavor,  however,  to  be  ready  to 
give  an  opinion  upon  this  question  to-morrow  morning,  and  in  order  to  hasten 
the  progress  of  the  cause,  and  that  no  time  may  be  lost  by  adjourning  now — an 
bonr  before  our  usual  time — ^if  it  will  be  agreeable  to  counsel  on  either  side,  we 
▼ill  meet  to-morrow  morning  at  9  o'clock. 

Counsel  on  either  side  expressing  their  assent,  the  court  thereupon  adjourned 
until  to-morrow  morning  at  9  o'clock. 

June  12,  1867. 
The  court  was  opened  at  10  o'clock. 

The  Court  then  said :  In  regard  to  the  motion  of  the  district  attorney  to  quash 
the  array,  or  to  challenge  the  array  granted  upon  the  affidavit  of  Samuel  Doug- 


46  TRUL   OP  JOHN  H.   SURRATT 

]a8B,  register  of  Waahington  city,  I  have  considered  the  argument  advanced  by 
learned  counsel  on  both  sides,  and  I  will  now  proceed  to  pronounce  my  opinion 
in  regard  to  the  motion : 

The  act  of  Congress,  approved  June  16,  1862,  entitled  "an  act  for  the  selec- 
tion of  jurors  to  serve  in  the  several  courts  of  the  District  of  Columbia,"  provides 
for  the  selection  of  jurors  in  the  following  manner: 

First.  It  makes  it  the  duty  of  the  register  of  the  city  of  Washington,  on  or 
before  the  firat  day  of  February,  to  prepare  a  list  of  such  of  the  white  male  citi- 
zens, taxpayers  residing  within  this  city,  whom  he  may  deem  best  qualified  to 
serve  as  jurors,  in  which  he  may  include  the  names  of  such  qualified  perossn 
as  were  on  his  list  for  the  previous  year,  but  who  did  not  serve  as  jurors  ;  the 
clerk  of  the  levy  court  is  also  required  to  make  a  list,  by  the  same  time  and  in 
like  manner,  from  such  persons  Qualified  to  serve  as  jurors  who  reside  in  that 
portion  of  the  District  not  incluaed  in  either  of  the  cities  of  Wa>*hington  or 
Georgetown,  and  the  clerk  of  the  city  of  G^eorgetown  is  required  to  make,  at  the 
same  time  and  manner,  a  list  of  pei*sons  qualified  to  serve  as  jurors,  from  citizens 
of  similar  qualifications  residing  in  Georgetown.  And  each  of  these  officers  is 
required  to  preserve  such  list,  so  made,  in  the  archives  of  his  office,  and  to  trans- 
mit the  same  to  his  successor. 

The  making  of  these  several  lists  is  to  be  the  work  of  each  officer  in  his 
separate  official  capacity. 

The  lists  for  the  three  principal  divisions  of  the  District  beine  thus  prepared, 
it  is  made  the  duty  of  these  three  officers  to  act  together,  and  select,  in  their 
joint  capacity,  from  the  lists  so  prepared  as  aforesaid  by  the  register  of  Wash- 
ington city,  the  names  of  four  hundred  persons,  and  from  the  Georgetown  lists 
the  names  of  eighty  persons,  and  from  the  lists  prepared  by  the  levy  court  the 
names  of  forty  persons. 

The  first  section,  which  imposes  the  duty  of  preparing  the  lists  of  qualified 
juiors,  treats  of  that  duty  as  the  duty  of  these  officers  respectively.  Each  one 
is,  in  the  express  language  of  the  act,  '*  to  make  a  list,"  and  each  is  permitted,  by 
the  law,  to  place  upon  his  list  the  names  of  such  qualified  persons  as  were  on  the 
list  of  the  previous  year,  as,  "  in  the  discretion  of  the  officer  making  the  same," 
may  seem  proper.  The  lists  are  to  be  made  by  them,  and  kept  by  them 
respectively,  each  one  preparing  and  having  the  charge  and  safe  keeping  of  his 
own  list  of  the  persons  for  his  respective  district. 

About  this  there  can  be  no  doubt,  and,  indeed,  there  is  no  controversy  in  this 
case.  When  we  come  to  the  second  section  of  the  act,  which  provides  for  the 
number  of  names  to  be  selected  from  these  several  lists  of  persons  qualified  to 
serve  as  jurors,  persons  of  whose  qualifications  each  of  these  officers  is  to  judge 
severally  within  his  own  jurisdiction  or  precinct,  we  find  that  the  legislature  no 
longer  uses  the  word  respective  or  respectively,  but  proceeds  to  declare,  in 
ipsistimis  verbis,  **  that  the  officers  aforesaid  "  (all  of  them,  not  one  or  two,  but 
all  three  of  them)  "  shall  select  from  the  list  of  the  register  of  Washington  city 
the  names  of  four  hundred  person,  from  that  of  the  clerk  of  Georgetown  eighty 
persons,  and  from  that  of  the  clerk  of  the  levy  court  forty  persons."  While  the 
work  of  preparing  the  three  lists  is  the  several  labor  of  the  officers,  independent 
of  one  another,  the  work  of  selecting  the  five  hundred  and  twenty  names  is 
devolved  upon  "  the  officers  aforesaid,"  the  whole  three  conjunctly.  It  may  not, 
perhaps,  be  necessary  that  they  should  all  meet  together,  and  at  the  same  time 
and  place  agree  upon  the  four  hundred  names  to  be  taken  from  the  Washington 
list,  or  eighty  from  the  Georgetown  list,  or  the  forty  from  the  county  list,  but 
certain  it  is,  that  all  "the  officers  aforesaid"  shall  select  the  number  of  names 
prescribed  by  the  statute.  If  one  of  the  clerks  only  shall  make  the  selection 
from  the  list  prepared  by  himself,  or  even  if  two  of  them  shall  make  the  selec- 
tion, this  will  not  meet  the  requirement  of  the  law. 

The  principle  has  been  too  well  established  by  a  long  current  of  decisions  to 


TRUL  OP  JOHN  H.   8UBRATT.  47 

be  now  questioned,  that  wheu  the  law,  enjoining  upon  three  or  more  the  duty  of 
performiog  an  act,  without  giving  to  a  majority  the  power  to  act  in  the  premises, 
all  roust  act,  or  the  action  of  those  who  do  act  is  a  nullity,  and  there  is  not  in 
the  statute  a  question,  one  single  word  or  syllable,  that  looks  in  the  least  towards  . 
a  selection  to  be  made  from  the  three  lists,  or  any  of  them,  except  by  the  united 
judgment  of  three  officers  upon  whom  the  duty  is  imposed. 

It  is  just  as  certain,  therefore,  that  the  entire  three  must  act  in  making  the 
selection  of  five  hundred  and  twenty  names  for  jurors,  as  that  each  of  the  clerks 
and  the  register  is  to  prepare  his  own  lists  severally. 

After  these  five  hundred  and  twenty  names  shall  have  been  selected  by  "  the 
officers  aforesaid,''  then  the  fourth  section  of  the  act  of  Congress  further  pro- 
vides, that  "  the  names  selected  from  said  lists  shall  be  written  on  separate  and 
similar  pieces  of  paper,  which  shall  be  so  folded  or  rolled  up  that  the  names 
cannot  be  seen,  and  placed  in  a  box  to  be  provided  by  the  register  and  clerks 
aforesaid,  which  box  shall  be  sealed,  and  afler  being  thoroughly  shaken,  shall 
be  delivered  to  the  clerk"  of  this  court.  The  fifth  section  provides,  that  when 
juries  are  needed  for  any  of  the  courts  during  the  year,  the  register  and  city 
clerks,  and  the  clerk  of  this  court,  shall  meet  at  the  city  hall,  and  such  juries 
shall  be  drawn  by  the  clerk  of  this  court,  who  is  to  publicly  break  the  seal  of 
the  box  and  proceed  to  draw  the  requisite  number  of  names. 

Snch  are,  briefly  stated,  the  provisions  of  the  act  of  Congress  upon  which  the 
motion  in  this  case  to  quash  the  array  is  rested,  as  I  understand  them,  and  as  I 
apprehend  they  must  be  understood  by  everybody  possessed  of  ordinary 
capacity,  and  free  from  the  bias  of  interest  or  prejudice.  There  can  be  no  othtr 
construction  put  upon  these  provisions,  which  will  not  do  violence  to,  and,  indeed, 
utterly  pervert  the  language  used  by  the  legislature  to  convey  their  intention, 
lu  enacting  these  provisions  it  was  doubtless  the  intention  of  Congress  no  longer 
to  leave  in  the  hands  of  one  man — the  marshal,  or  any  other  single  man — the 
power  of  selecting  juries,  in  whole  or  in  part,  except  in  the  exigencies  of  certain 
cases,  for  which  they  provided  in  the  same  act,  and  which  cases  are  of  rare 
occurrence.  This  power,  vested  oftentimes  in  marshals  and  sheriffs,  nobody 
doubts,  had  heretofore  been  often  grossly  abused,  and  in  many  instances  made 
the  instrument  of  injustice  and  wrong,  and  Congress  thought  it  would  better 
serve  the  purposes  of  justice  if  it  should  institute  the  combined  selective  power 
to  three  or  four  officers,  the  register  of  Washington  city,  the  clerk  of  George- 
town, the  clerk  of  the  levy  coart,  and  the  clerk  of  the  supreme  court,  in  the 
{>lace  of  the  much  abused  and  arbitrary  solitary  power  of  the  marshal.  This 
aoguage,  in  my  judgement,  expresses  the  intention  as  clearly  as  any  idea  can 
be  pictured  by  the  English  language.  Each  of  these  officers  was,  doubtless, 
intended  to  act  as  a  safeguard  against  any  abuse  which  the  partiality,  bias,  or 
corrupt  disposition  of  the  other  might  possibly  allure  him  to  commit. 

The  affidavit  of  Samuel  E.  Douglass,  the  register  of  Washington  city  at  the 
time  of  the  selection,  made  in  January  or  February  last,  of  the  names  from  which 
the  present  panel  of  jurors  is  taken,  shows,  first,  that  neither  the  clerk  of  George- 
town, nor  of  the  levy  court,  saw  one  single  name  on  his  list,  much  less  aided  or 
cooperated  with  him  in  selecting  the  four  hundred  which  the  law  requires  that 
these  three  "officers  aforesaid"  should  select,  and  that  he  did  not  see  a  single 
name  upon  the  list  of  either  of  the  others,  or  co-operate  in  selecting  from  their 
lists.  On  the  contrary,  it  shows  that  each  of  these  three  officers  put  into  the 
box  the  number  of  names  specified  in  the  act  for  their  respective  jurisdictions, 
each  independently  of  the  other,  and  without  the  slightest  regard  to  the  judg- 
ment or  consent  of  either  of  the  other  two. 

The  affidavit  further  shows,  that  after  the  selection  of  the  names  to  be  put  in 
the  box  had  been  thus  made,  in  utter  disregard  of  the  requirements  of  the  act  of 
Congress  in  tliat  behalf,  instead  of  sealing  up  the  box  and  thoroughly  shaking 
it,  and  then  depositing  it  with  the  clerk  of  the  supreme  court,  as  required  by  the 


48  TRIAL   OP   JOHN   H.   SURRA!  T. 

fourth  section,  and  then  meeting  afterwards  in  the  office  of  the  clerk  of  the  conrt 
to  witness  him  hreak  the  seal  and  draw  the  names  of  tl:e  jury  required  for  the 
present  term  of  this  court,  as  provided  for  in  the  filth  section  of  the  act,  the 
clerk  of  Georgetown  city  at  the  same  time,  though  in  the  presence  of  the  clerk 
*  of  the  court  and  the  other  officers,  proceeded  to  draw  from  the  hox  the  names  of 
this  present  panel,  to  which  challenge  is  now  made.  This  was  also  a  most  re- 
prehensible dit^regard  of  the  plain  provisions  of  the  act.  These  are  the  facts 
upon  which  the  application  to  quash  the  array  ia  grounded.  The  question 
presented  by  the  law,  and  the  facts,  (^  which  are  all  admitted  by  the  demurrer,) 
tor  the  decision  of  the  court,  is  twofold  in  its  character  : 

First.  Does  the  law  of  Congress  require  that  the  judgment  of  all  three  of  the 
officers  named  therein  should,  either  united  or  severally,  pass  upon  the  entire 
five  hundred  and  twenty  names  required  to  go  into  the  box  in  making  this 
selection  from  the  three  lists,  or  does  it  only  require  that  the  clerk  of  George- 
town only  should  pass  judgment  in  selecting  the  eighty  names  from  that  city, 
the  clerk  of  the  levy  court  upon  the  forty  to  be  chosen  from  the  rural  portion 
of  the  District,  and  the  register  of  Washington  to  select  the  four  hundred 
to  be  taken  from  this  city  ? 

Secondly.  Whether,  if  the  act  of  Congress  does  require  the  judgment  of  all 
three  of  these  officers  to  be  exercised  in  the  selection  of  the  entire  five  hundred 
and  twenty  names  to  be  placed  in  the  box,  the  placing  them  there  in  the  manner 
described  by  Mr.  Douglass  in  his  affidavit,  is  cause  of  principal  challenge  to  the 
array. 

^  I  am  clear  in  my  conviction  that  the  law  requires  the  united  judgment  of  the 
three  officers  named  in  the  act  in  the  selection  of  the  entire  number  of  names  to 
he  placed  in  the  box,  for  the  reasons  that  I  have  already  mentioned. 

Is,  then,  the  several  action  of  each  of  these  officers  in  selecting  exclusively 
from  his  own  list,  and  not  even  looking  at  the  lists  of  either  of  the  others,  or 
even  knowing  any  of  the  names  taken  trom  these  lists  to  be  placed  in  the  box, 
aa  sworn  to  by  Mr.  Douglass,  and  admitted  by  the  counsel  for  the  prisoner,  a 
ground  in  law  upon  which  to  set  aside  the  array. 

It  is  argued  by  the  counsel  fur  the  prisoner  that  it  is  not ;  that  nothing  ex- 
cept a  defect  in  the  summoning  of  a  jury  by  the  sheriff  is  principal  cause  of 
challenge  to  the  array  in  England  by  the  common  law,  which  we  have  inherited 
firom  our  Biitish  ancestors,  and  which  is  the  law  in  this  District,  by  which  we 
are  to  be  governed  in  the  decision  of  this  question  ;  and  the  case  of  the  Queen 
against  0*Conuell  and  others,  has  been  ched  by  the  counsel  for  the  prisoner  at 
the  bar  as  conclusive  of  the  question  in  this  case. 

1  confess  that  my  vener<ition  for  the  common  law  of  England  may  sometimes 
even  run  into  a  weakness,  but  the  day  is  long  p&^sed  with  me,  and  should  be 
with  everybody,  when  decisions  of  courts  and  mere  arbitrary  utterances  of 
test-writers,  however  hoary  with  age,  or  exalted  in  position,  are  to  be  accepted 
as  Procustian  beds,  on  which  other  courts  and  other  people  are  bound  to  fit 
themselves,  with  or  without  reason.  With  me  no  deci:*ion  is  of  weight  that  lacks 
of  reason  for  its  solid  foundation,  unless  it  be  the  decision  of  a  superior  court 
that  holds  a  mastery  over  me,  whose  mandates,  right  or  wrong,  reasonable  or 
unreasonable,  I  am  compelled  by  law  to  obey. 

The  grand  object  of  jury  trials  in  this  country  or  in  England  is,  or  ougiit  to 
be,  and  is  supposed  to  be,  a  fair  and  impartial  investigation  of  the  subject  in 
controversy  by  honest  and  upright  men,  who  are  entirely  indifferent  between 
the  parties  to  the  suit.  It  was  to  subserve  this  view  that  challenges  were  per- 
mitted to  be  made  either  to  the  array  or  to  the  poll,  and  either  by  principle  or 
by  favor.  Some  persona  entertain  the  idea  that  challenges,  and  many  other 
advantages,  are  given  by  the  common  law  to  the  prisoner  exclusively,  and 
nothing  to  the  Sute.  This  ia  as  if  we  should  say,  that  all  the  provisions  and 
IbrmnUriea  of  the  common  law  were  invented  simply  for  the  purpose  of  pre- 


TBIAL  OF  JOHN  H.  8URBATT.  49 

Tenting  the  public  from  obtaining  its  just  demands  upon  the  guilty  offender 
against  societj.  It  is  as  thongh  such  formularies  were  a  mere  means  and  cere- 
mony by  which  the  accused  is  to  derive  every  advantage  and  have  every  means 
to  assist  in  setting  him  at  large,  without  respect  to  the  rights  of  an  offended  com- 
munity. I  entertain  a  different  opinion.  I  concur  with  Chief  Justice  Gibson, 
of  Pennsylvania,  in  the  case  of  the  Gommonwealth  vi.  Joliffe,  7th  Watt,  585, 
in  which  he  says :  *' Total  impnnitv  was  not  the  end  proposed  by  the  legis* 
lature,  nor  ought  it,  perhaps,  to  be  desired  by  the  philantropist.  It  is  not  easy 
to  discover  a  conclusive  reason  why  the  punishment  of  the  felon  ought  to  move 
our  tenderest  sympathies,  or  why  the  laws  ought  to  be  defectively  construed 
in  purpose  that  he  might  elude  them.  To  rob  the  executioner  of  his  victim  when 
the  laws  are  sanguinary,  it  might  be  an  achievement  to  boast  of,  but  we  are  told 
at  the  mitigation  of  our  penal  code  that  the  certainty  of  conviction  to  be  ex- 
pected from  mildness  of  punishment  would  more  than  compensate  in  its  effects 
the  want  of  that  severity  which  was  thought  to  deter  by  its  terrors.  *  *  If 
it  be  forther  indulged,  a  shorter  and  certainly  a  cheaper  mode  of  obtaining  its 
end  would  be  to  have  no  prosecution  at  all.  But  it  is  one  which  would  scarce 
be  found  to  answer  in  the  state  of  the  times.  Why,  then,  should  the  prisoner 
have  more  than  serves"  (speaking  of  challenges)  *'  to  give  him  a  fair  trial?  and 
his  twenty  peremptory  challenges  certainly  gives  him  that,  and  having  secured 
to  him  all  he  had  a  right  to  require,  it  must  have  occurred  to  the  legislature  that 
the  commonwealth  must  have  a  fair  trial  too." 

Let  OS  now  see  whether  the  case  of  O'Connell  and  the  Queen,  tried  in  1844, 
is  one  which  we  ought,  according  to  the  counsel  of  the  prisoner  at  the  bar,  to 
accept  as  conclusive  upon  the  question  now  before  us.  In  that  case,  by  Sd  and 
4th  William  IV,  chapter  19,  and  by  4th  and  5th  William  IV,  chapter  8th,  cer- 
tain provisions  were  made  regulating  the  mode  in  which  certain  books  should 
be  prepared,  from  which  the  sheriff  was  required  to  make  certain  a  selection  of 
juries. 

In  the  preparation  of  one  or  more  of  the  lists  from  which  these  jury  books 
were  made  a  number  of  names  of  persons  qualified  as  jurors  was  omitted.  A 
challenge  to  the  array  was  made  in  this  case  on  the  ground  of  the  omission,  and 
it  was  held  that  such  omission  in  one  of  the  preliminary  lists  was  not  a  suffix 
dent  cause  of  challenge  to  the  array.  But  that  is  by  no  means  the  present 
case.  To  make  the  case  at  bar  similar  to  that  of  O'Connell,  and  bring  it  within 
the  ruling  in  that  case,  it  would  be  necessary.tbat  Congress  should,  in  the  law 
for  summoning  jurors,  have  incorporated  a  provision  requiring  that  the  three 
ofiBcers,  who  stand  in  the  place  of  the  sheriff,  should  have  prepared  their  respect- 
ive lists  from  the  lists  of  the  assessors,  or  some  other  officers,  and  that  in  mak* 
ing  the  lists  of  said  other  officers  some  negligent  or  fraudulent  omission  should 
have  occurred.  It  may  be  admitted,  without  any  prejudice  to  the  motion  in 
this  case,  that  the  omission  by  such  assessors  or  other  officers  to  make  a  com- 
plete list  from  the  list  or  jury  book,  if  we  may  so  term  it,  used  by  the  register 
and  clerks,  in  order  to  inform  them  as  to  who  all  the  persons  legally  qualified' 
as  jurors  in  their  respective  jurisdictions  were,  would  not  have  been  of  sufficient 
ground  of  itself  to  set  up  this  motion.  And  yet  I  am  free  to  say  that,  in  my 
opinion,  it  ought  to  be  sufficient.  But  admitting  it  were  not,  it  is  a  very  differ- 
ent case  from  the  one  before  us.  Here  Congress  requires  that  we  combine  the 
judgment  of  three  officers  in  selecting  the  persons  of  whom  the  juries  are  to  be 
eomposed.  Each  of  these  officers  is  to  be  a  guard  over  the  other  two,  to  pre- 
vent him  from  perpetrating  a  wrong  against  individuals  or  the  community  by 
putting  in  the  box,  from  which  jurors  for  a  whole  year  are  to  be  taken  in  all  the 
eornts,  the  names  of  persons  who  are  disqunlified,  either  from  want  of  mental 
capacity,  moral  rectitude,  purity  of  blood,  want  of  proper  age,  or  tax  paying 
qualifications. 


50  TRIAL   OF  JOBS  H.   8UREATT. 

If  one  of  tliosc  otHcen.  a5  Mr.  Douglass  did  on  tbe  occaeion  of  filling  the 
jury-box  on  Fobrunrv  la^t.  should  exercise  an  exclusive  judgment  in  tbe  selec- 
lion  of  400  out  of  the  520  names  put  into  the  box.  tbe  safeguard  which  Con- 
ppi'ss  soucbl.  by  the  act.  to  throw  around  the  selection  of  jurors,  is  not  worth  a 
ti^.  and  the  law  was  not  wonh  the  lime  consumed  in  its  passage.  Mr.  Douglass 
U'ay  be.  and  doubtless  is.  an  honest,  fair-minded  and  honorable  man ;  but  the 
law  iMUUo;  be  rt^laxeti  ou  that  account,  for  we  cannot  tell  how  long  the  office 
may  i\nuinue  to  be  tilletl  b}  such  men.  It  was  enacted  to  prevent  dishonest  or 
preiu%".ioevl  or  ^vtrtial  men  from  carrying:  ou:  their  dishonesty,  prejudices  or  par- 
tiality, .iud  ^e  have  no  r'^h:  to  reLix  ilie  law  because  of  our  belief  in  the  tair- 
no*s  ot'  any  m.^n. 

The  r;*.V'.:v\  as  woU  as  ir.xiividna'.*.  have  ;i  r'ffh;  to  exact  a  rigid  compliance 
^i:l*.  ;';i'  iw^iiirx  nu  :i:^  of  :!;e  hw.  .«v.  ;ho  ouly  way  to  =-cvure  a  fair  and  impar- 
f,al  v;:v.:v':  l>.^:h  to  :h<-  rv.Mic  :i:v,:  iV.e  pr:*"»ner.  :a  :h!?.  a*  ia  all  other  cases,  is 
tv»  >t-.»  \V..\z  :ho  law  Iv  :V.r.y.  fairly.  a:i.i  i'jsivariaV.y  txrcuTrd  in  all  its  require- 
mi:;:<  The  :hrtv  otS.^ir^  s-.HV.r.v,  i:i  ::.e  ac:  ■:!  Cos:rrr<*  sracd  in  the  place 
K'^X  :h;'  n**r*hal  or  ^hiii*  J-r.i*  ^x:.  ■  art-  *::=i::^^cr-i  :.^  :ry  ci-^r*  in  this  court 
Riv.*:  v.. :  x".:'.v  K*  >:;:v.u:.>v.;\:  vr.  :"^::'.y. :  ■;:  ::•.::*:  ";-.  *t'.'-c>-i  :a  ^'brdien.^e  to  the 
n\,v.  r;v.v.v.:>  x!  :he '.*«<  The  .a*'.  .:  v»W^r.::rr.  ca-  s-»rarccly  be  said  to  be 
r\^ar.*.«v.  a*  la«  •::  :':::<  o".:n:ry.  "•i.rv-  vj..rt  in::*  a:  :L:*  day  are  considered  as 
v-f  v.'.;r:  :i;W"."ary  i:r>*r:avvt'  »":::v.  k*-!!';:  ir:-.:  w::}:  :i:c  s-'r^iacce  of  ihe  law. 
I:*  .-.1  ^  ;-.*::. i;!:",v  ;r  .:;:.i.;'.:  ■.;■.  ::.:  *r.-,:.r  .:  i--ri:y  :;:  arr:s.y:-j  ;he  fianel  gives 
<:*:■,:  ;V*:'v  :: :  :  ;•>.;  :."  .rr'I.-.v.jTf  ''-i  .irr*.y  \*  *  ur. :  -':  :f-i.ly  ;Lr  law.  ride  3d 
F.cks:.*:  :.  :''^.  ,  :*;:4::  ^/.vh  y  r:-..  Ty  :  .•.:.-•,■;'.:  ::  :'::■:  :  ar:  :  :Lo?*  who  are 
s-:.>:.:.::;v.  r\:  :  -,  >>.;?:- 5  av.;*:  '  R:v.  s-  ':-:  r  ■>•  :a-?-  .:  I-:,a"."ri^.  to  the  array. 
!:•  :>?  >:a:;  .-:'  N-:*  Y::k  ::  '..a*  :•:•:"  :  -'.!..  -.r.  :'^-:  ras--.  •::  '.Tirii-rr  r#.  Tnruer, 
>  ':  .*.":  >v  yJL^-  xV.'.  :.  »:  :!  ;  .■.-'.••  :  c  r*  *-."rt::y-:w:  r.i— -^  by  the  cerk 
!-.  V  :i;  ;..:n-S;\.  *:-:;a.-.  •:  ::  r%  -  \.  :j :  -:.r:>r  r:*:;  .>•! ':y  !aw.  and  the 
*«;',»:  i  ::  ::v  *\":v  ':  :-.-  .:  :  :":  :  *-•  --y-:-* -.  i.  i.  :  *  i.rrcr.on  :o  the 
s>;.-  *  :.'  5- ,r--r.- V  •>;  :':  .-Ty*  \  •":  :-  *.-■•: *t;1  ".y  ':  rr,  wi.?  *:ich  ctrraoll  as 
%.  ..  .1  >i.*  JL  -■  a  .'"t"-:  \ir-  '     '-:   1T•:■«^       1:   -'n  r*.>--     :  Ti— :^  >». -^i-irt-  plain- 

:f     ;     -'■"'    'f    \:.  V.':'f.  :.:  -.r-      **   ::  : :  '  ;  Lrs.T:  *  vr.Tiiii^a.' Kep^rts, 

vwuT;  '.  *>     '"  "*  *■*  --    ■  *!'■»"  ■-■•>  ■  .. :   is:;:    .■*".-••:    i::  r.-T^  -^  a^  reiTiircni  by 
>-a;..::        ftsr.-;  :  ?*  ."^.•.■•:T''  '.--.■.•■     i    :••  ,•:"  "    :•*     t     iry  •-z^s-^n-ed  by 
:i-:  >*.■  f   ^    .  ■  .    <.:2  7."*.',-.  .  ■  !••>>-     ;  -  .     -  * : '■  r:«  I'-i    iJi ,  ::.-.   ^r.victioa 
:>   ?■«:.'      /^   •  !»>  :■;■  ......    .-  ■    I.-    T".  *.       :■■     .■-:..-    :  :■  i—.::.  i.  was  re- 

»:-^-  ,;  ":.>■:■  :  V».  '^v^  .--"•::  ^:  ■.-  .'^■-  '.f  .tv  rrja'-atiag 
•!•*'-:     •■•      -..^    ..-■>•'•..-'  -.  :  '**.■<    ■"     T   :   i:  i  z-zr-  :  fr  :Lr  jury 

5-:    .      .■     -^  :•;     •      >  *  v    ■  ■  -^  t  ■  -     -.-'.-...•-    J":-  ■.  :lf  can  f't' 

r       •!.>>>■.*..  .•  • .'  •'  .  .'    ^  *'■::.■  r:.::7i-  i.^:   I'.-r  the 

,^    i.        .     :  >  .      ?  •        .'■  ::     ■        ^       .         ■       .-      ^    v    .-      :■  r    T  -     SL^'-    '.  Z^r   by 

^  Ti       ■    .T"^  *     ■     "       •.-•.■■       .'t  .-'--i.     •     v.-  J      :  .zs  .:  :ir  law 

_i'.C*>  ^•.        -C".    -*■  ■"     -^     •■■■                  •-...    1   '  .......  ^     -   ^..;.--l1  **rt?XO<. 

■. .    .:-.  ,  i.^-:  ..      :•;  >•:  .      -  .*          '^'*       -  ■       "•    :-.  I.       *.:.    ..  ..  i::c-£  r'^r  the 

n  I.-.  .      I    :  >  *•.'.    ^  :  '. !   %  ».*             .    .>  .    ■  .^   i       -■■■-  i  ;  -    ;.:■-•:: .  azi  ty 

,\    i.    -*         .^     i.^;  ^:    •.      '■'.■:.•  ^    ■  !'  ,:  »,■  -     ^.;..     t    ;  LSc    wl^lch 

'^  :i>      »  :.-^::'         i:.     ,-.:-•.■'  i'-         v  ?,  .--::■:      1^     t:  f    f.C'  'A 

*.v^  •::■■'    ■.-     '.  ■:     .' •      ■■      •    ■     ^ '.     ■'^-•i-:    •-'.    ■.-■:•    -  ■!.—   ■•■:  rr-rral 
:.^-  ;»    >^  ::  •.    .V.        I    .        :  ■»  ..      !•    .'  -i,-     ,-      '-•>.:  L  ^rnai- 

**•  ^'i;.---..    ^w      *     .r.-v      v..     .'  .     ;.  . .»    >..:■.  n»  .:•:-.    "     L^ cci  Uie 
•*    '  ■•»:    ■•  ■      :•'  »•     ^-^       •     ■     *     -       :..  -      :     j^-.-  ■:  .  i,i,^^.  -'^^  :2c-r<? 

.  !        r         ^      -         :         '■     ^l    1.    .••.•..:.        .         •  .       -.    ;.;       :j..     ^;--.    01 

•    %  u*  T^iTX     I    ^■-  i  T'     :■».:%.■«•     ,  •.■.  ^      r..    .,;  -  -^  anav, 

ii.V  i-.I'i.^'"  .      *      I    .>..•:    I       •  'v  \  ;,.     - ; ,uL'_i Tfjy 

-.">.  It       -h       .     '  ^    .-^-^  *  .-  :.  ...  -     -  *  .:.f.r«r:a 

-siv.:    >   Uv    .-..^     -      ^v-.  ■»•-:,•  ^..   >    ^      :  :?   ,\vi.l--r  -Clef- 


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TRIAL  OF  JOHK  H.  SUBRATT.  51 

tain  in  respect  to  tbe  eelection  of  jarors,  and  the  secoring  of  a  fair  and  impar- 
tial trial  on  either  side,  that  they  reqaire  a  strict  compliance  with  the  very  letter 
of  the  law,  no  matter  from  which  side  the  challenge  maj  be  moved.  It  is  jast 
as  important  to  have  fairness  and  impartiality  upon  the  one  side  as  npon  the 
other,  otherwise  the  trial  of  a  criminal,  however  deep  his  infamy,  may  be  made 
a  mere  farce  through  which  his  enlargements  is  to  be  procured.  If  it  be  im- 
portant to  observe  the  mere  forms  of  the  law,  it  is,  in  my  opinion,  of  much 
graver  importance  fully  to  comply  with  the  least  of  its  substantial  requirements. 

Believing,  therefore,  that  the  substantial  requirements  of  the  act  of  Congress 
m  this  case,  providing  for  the  selection  of  a  fair  and  impartial  jury,  have  not 
been  complied  with,  but  entirely  set  at  naught,  and  that  there  has  been  grave 
defoult  upon  the  part  of  these  officers  whom  that  act  has  substituted  in  the  place 
of  the  marshal,  for  the  purpose  of  having  them  exercise  united  judgment  in  the 
selection  of  all  the  persons  whose  names  are  to  go  in  the  jury-box,  I  am  con- 
8trained  to  allow  the  motion  of  challenge  in  this  case.  I  do  not  consider  the 
fact  that  the  present  panel  were  improperly  drawn  by  the  clerk  of  Georgetown, 
who  had  no  right  to  put  his  hand  into  the  box,  because  the  objection  which  I 
have  allowed  lies  even  deeper  than  that. 

It  is,  therefore,  ordered  by  the  court  that  the  present  panel  be  set  aside,  and 
that  the  marshal  of  the  District  of  Columbia  do  now  proceed  to  summon  a  jury 
of  talesmen. 

Judge  Fisher  subsequently  said :  My  order  is  that  the  marshal  summon 
twenty-six  talesmen. 

Thereupon  the  court  adjourned  till  to-morrow  morning  at  10  o'olock. 

June  13,  1867. 

The  court  was  opened  at  10  o'clock,  when  the  clerk  proceeded  to  call  over  the 
names  of  talesmen  summoned  yesterday,  in  accordance  with  the  directions  of 
the  court. 

The  first  name  called  was  that  of  Mr.  William  B.  Todd,  who  responded. 

The  name  of  George  Mattingly  was  next  called.     He  failed  to  answer. 

The  Court  said :  I  will  remark,  with  respect  to  Mr.  Mattingly,  that  I  have 
received  a  letter  from  him,  as  I  have,  also,  from  numerous  other  gentlemen  who 
have  been  summoned,  asking  to  be  excused  from  serving.  I  will  read  Mr. 
Mattingly's  letter.  I  have  no  doubt  that  what  he  states  is  true.  The  letter 
is  as  follows  : 

"  Washington,  D.  C  ,  June  13,  1867. 
**  Dbar  Sir  :  I  was  summoned  yesterday  on  the  jury  to  try  Snrratt,  and  I  have 
to  say  that  I  cannot  possibly  serve.  Whilst  1  am  willing  to  serve  you,  and  luy 
country,  at  all  times,  I  must  respectfully  ask  you  to  excuse  me  on  this  occasion.  I 
will  here  state,  that  I  am  exempt  on  two  grounds,  so  that  you  will  have  no  difficulty 
in  excusing  me.  First,  I  am  engaged  in  carrying  the  United  States  mails;  and 
secondly,  I  am  over  age,  having  attained  my  sixty-fifth  year  on  the  24th  of 
December,  1866. 

"  Very  respectfully,  yours, 

"GEORGE  MATTINGLY. 
"Hon.  George  P.  Fisher." 

Mr.  Mattingly  is  a  very  excellent  man.  He  has  served  here  a  number  of 
times  on  the  grand  jury,  and  I  have  no  doubt  that  he  would  make  a  good  juror, 
bat  if  he  is  over  age  of  course  he  is  exempt,  and  not  only  exempt,  but  he  can- 
i»t  lawfully  serve.     What  do  you  say,  gentlemen  ? 

Mr.  Bradley.  He  will  have  to  be  excused  if  he  is  over  sixty-five  years  of 

V- 
The  OoURT.  Yes,  I  have  no  doubt  of  it. 
Mr.  Clerk,  you  will  strike  his  name  from  the  lists. 


52  TRUI.  OF  JOBS  H.  SORSATT. 

WOfiam  H.  Tenner  wns  eafled,  and  responded. 
Wmiam  P.  IMe  ww  next  called,  bat  £uled  to  answer. 
Andrev  J.  Jorce  was  called,  and  responded. 

Hie  Corrr.  tTas  not  Mr.  Jojce  on  the  grand  jmj  ^hat  feond  this  bOl  I 
Mr.  JoTCB.  No.  sir. 

Mr.  WiLsox.  I  dioQglit  lie  was.    He  was  on  a  pieiioiis  one.  I  remember. 
Mr.  Joyce.  Tee,  sir:  I  was  on  the  grand  jmj  pverioos  to  that,  serentj-one 
dars. 

\Lt,  Bkadlkt.  It  wonld  make  no  dUbeute.  Toar  honor,  as  £nr  as  tiiis  ease  is 


concerned,  as  the  law  makes  no  exemntkm  in 


:empOoni 
■e  this  no 


The  Cocrr.  Mr.  Joyce  hands  me  th^  note : 

^  Wa^bukgtox,  D.  C  JbiK  la,  1S67. 
*-  Thi»  cotilies  that  ^  diiid  oi  Mr.  A.  J.  Jojce  is  venr  dangeronslj  ill,  and 
tkis  h»  preanee  »  neosaftrr  at  home. 

-^  THOMAS  MnJ.ER,  IL  D.*' 

The  Cocrr.  What  haTe  jon  to  sar  to  that  ! 

Mr.  B&JUiLSY.  An  we  cut  sar  s  that  it  »  snbycct  to  thedkpoeal  of  the  court 

Th«  Cocrr.  I  do  noc  wi«h  to  excose  anrbodv  where  there  b  objection  made 
ft>  the  excttse  that  jbjlj  be  presented,  bat  I  think  ■  beget  ci  there  is  a  good  and 
Tal5c  excsise  ihe  p«E^  o^di:  a>  be  relieve 

The  IHsTTKT  Attoucy.  If  Tonr  hoeor  p£ewes^  mider  the  drromstances, 
I  ^kaH  iaterpcise  no  objectajn  to  exfiwing  Mr.  «IoTce. 

T^  CocaT.  Mr.  BndLev  <£o  Ton  infierpoiie  anj  ob^ectiott  ? 

Mr.  BuLMJBT.  la  hss  case,  if  rvn  hovar  pienm.  we  hame  to  snbnut  entirelj 
to  tie  «xder  o<  the  owzv  We  w^  tobe  saTcii  the  neciBBszSTof  either  objecting 
or  x^sentsz^. 

The  Cocrr.  I  and  ^as.  nader  the  ekhth  sectiiM  of  the  act  fw  snmmoniog 
jTr:rs.  there  3»  a  «l2screCBt?aL  repc«ed  rx  the  ciMrt.  an.*!  as  I  w^nld  not  wish 
di  be  nh^^frec  :o  53  apec.  a  JTCzy  ^  a  case  whai  blt  ch^  i  wn$  IjbiC  ^  ^^  pmnt 
«c  deailt.  azc  mj  p^instcsan  airisec  bt  prejence  to  be  Kcetsoaiy  as  home,  I  do 
not  K<L  :kibS  Is  w^jo^ji  be  J:as^  djcsaf  to  rei|c£re  Mr.  Jcj^e  10  <i:  s«.  He  k  excused. 

Fr;uck  Tjjkc  w:l«  calLeiL  aaid  K;5piNaoeiL 

T^  CociT.  I  have  aiw  receiTed  a  au«e  »m  Mr.  Tar^^.  w^aea  I  win  read : 

*  WjLS4r?K-,rTv>x.  Jvmt  13.  1S67. 

*  Tie  X2»£«5cir35fc.  w::bL  rr*i5  rewft  be**  jif»iT^  ^  ^etie  6>  jTor  kxior  that 
he  ha^  Vnil  Mai^  n^  jujijma  oa  ^  Sixrract  easew  mrw  pettcx^ ;  that  he  is 
IMC  If  ?^5«  I3ne.  aa«i  hai^  aoc  Veeot  arr  <>eTenI  iiajrs.  a  a  cuaiaEaan  of  heahh  fit 
3IC  n»tr  i^iTY.  »7c  ad^  i-^>  ;i3»frfff?&ke  sc  wtsh^qs  a  pweygcs  «?f  Ae^ajia^  and  em-. 
hw  i'lMint"  ne  CKe:  dbu  <c«nf  Vo^eti^  a£fti»  new  B&uxrtn^  need  nr^entlr  his 
perK^ouI  a:>ffT:a?a.  ax  aneacrvn  w^xh  ^  n»K  of  a  xtcace  p«Msibor  w  W  delegated 
1»  icBten :  and  tha&>  x  jtmi  a£ft»  <aBaN-(  nfciscTe  ^nai  afiacacara  as  hi*  hands 
wtiiizL  a  xw  iaT>^  iif  cn^cc  jaI  datsatets^s  sCKXiiin^  will  be  jenMnN-  mjvcd  in 
tw»/  ?j«%x  <tf<tafir%$w 

-^  Ftt  t^««e  reafioi&s^  w^iSca  ^  xxf^KTS^^rxed  Je«$  jmiy  «^  KsbsciasBifie  Inr  his 
a:&ijiTtc^  ^  retsQeccrxTx  ^nr^  Tt^or  3ira»?c  ?^  ill»7w  iin&  >r   fi  irffcuj.!    hia  *iatj 


>i  ue  AW.  a3»&  ^r  taie  c^iozv  a:  ixj  jcjmt  sMinm;  ;aa«i  :2e  pcesesi:  ^ 

-  rSAXCK  TATLOR. 

Mr.  l^ULVCST.  He  ai^te  Todbf  Mfi^  90  ^  tcasemenc  tt  &e«s  m  dw  letter 
amr  sia  W  pdaN«  vnwr  tae  »e<et«;$^  it  iMt£:a;c  ttt  ^o^KveinMj:  adUarEt. 
IVt  OmiT.  I  wut  jay  ^4(5  Mr  favW  tamML  ^  mif  W  ^^  ^f^  receir- 

"^       "  .  t^ne  &«  lidi  tiMae  MMM^  ;eftuMi»  w^  the  $ai««nmat 


TRIAL  OF  JOHN  H.   SURBATT.  53 

making  it  necessary  for  him  to  raise  very  large  sums  of  money  in  the  transac- 
tion of  that  basiness,  which  business  is  transacted  between  him  and  persons 
residing  in  foreign  countries,  and  unless  he  had  the  opportunity  to  make  those 
business  arrangements,  it  might  prove  extremely  prejuaicial  to  his  credit 

Mr.  Bradlby.  Will  your  honor  pardon  me  ?  We  on  both  sides  concur  that 
this  is  a  matter  entirely  within  the  discretion  of  the  court ;  and  we  take  it  for 
granted  that  there  may  be  excuses,  personal,  and  relating  solely  to  the  private 
affairs  of  individuals,  which  they  do  not  want  to  have  made  public.  1  would 
suggest  to  your  honor,  therefore,  that  we  do  not  desire  to  hear  any  reasons  of 
that  nature  which  may  be  assigned  by  the  party. 

The  Court.  Mr.  Taylor,  I  am  quite  sure,  does  not  object  to  having  the  rea- 
sons he  urges  made  known.  He  is  a  man  of  good  standing,  and  he  is  desirous 
of  maintaining  that  good  standing. 

Mr.  PiBQRBPONT.  As  I  understand  my  learned  friend,  we  both  agree,  that 
in  any  of  these  cases  that  may  arise  we  do  not  ask  to  hear  the  reasons,  but  leave 
it  entirely  with  the  court. 

The  Court.  Very  well.  With  regard  to  the  case  of  Mr.  Taylor,  I  will  state 
that  I  know  from  the  statement  he  made  to  me  that  it  is  of  the  first  importance 
that  he  be  relieved  in  order  to  attend  to  his  business  arrangements.  He  is  ex- 
cused. 

John  R.  Elvans  was  called,  and  responded. 

David  P.  Hollowav  was  called,  when  he  rose  and  said: 

I  beg  leave  to  state  to  the  court  that  I  suppose  I  am  not  competent  to  sit  as 
a  juror  in  this  District,  from  the  fact  that  I  am  not  a  citizen  of  the  District. 
For  the  last  six  years  I  have  voted  in  the  State  of  Indiana,  and  am  in  business 
there — ^keeping  a  furnished  house  for  the  purpose  of  retaining  my  residence  in 
that  State  I  never  voted  here,  and  do  not  contemplate  doing  so,  but  expect 
soon  to  return  to  Indiana. 

The  Court.    Are  you  residing  within  the  limits  of  this  District  at  this  time  ? 

Mr.  Hollo  way.  I  do  not  know  what  technical  meaning  is  given  to  the  word 
•*  residing."     I  am  staying  here. 

The  Court.  Keeping  house  and  transacting  business  here  ? 

Mr.  Hollowav.  I  am  not  keeping  house. 

The  Court.  Are  you  transacting  business  here  ? 

Mr.  Hollowav.  I  am  transacting  business  here.  I  am  engaged  temporarily 
in  business  here. 

Mr.  Pibrrepont.  Will  your  honor  permit  us  to  make  a  suggestion,  for 
although  we  all  agree  to  leave  this  matter  to  your  honor,  yet  we  feel  that  we  have 
a  duty  to  perform  in  the  way  of  making  such  suggestions  to  yon  as  may  occur  to 
us.  Witn  the  permission  of  the  court  I  would  say,  that  if  light  excuses  are 
taken,  judging  from  the  experience  we  have  all  had  in  such  matters,  the  men 
best  fitted  to  serve  as  jurors  are  those  who  are  engaged  in  important  business 
for  themselves ;  and  there  is  some  danger,  unless  the  rule  is  adhered  to  somewhat 
strictly,  that  men,  from  a  view  to  their  private  interests  alone,  will  get  rid  of  this 
very  high  duty  which  they  owe  to  their  country.  We  know  very  well  that 
they  wish  to  be  excused,  as  it  is  very  natural  for  them  to,  but  they  should  be 
made  to  feel  the  importance  of  this  great  duty  which  they  are  called  upon  to 
perform. 

The  Court.  The  law  says  that  if  the  party  is  a  resident  here,  is  over  twenty- 
one  and  under  sixty-five  years  of  age,  a  good  and  lawful  man,  who  has  never 
been  convicted  of  a  felony  or  misdemeanor  involving  moral  turpitude 

Mr.  Bradlbv.  And  a  **  taxpayer.''     [Laughter.] 

The  Court.  He  is  a  "  taxpayer  ]" 

Mr.  HoLLOWAY.  Nof  sir.    I  have  paid  an  internal  revenue  tax  here,  but  I 

Ipay  my  other  tax  in  Indiana. 
The  Court.  Do  you  pay  any  tax  on  real  estate,  or  a  personal  tax,  here  } 


64  TRIAL   OF  JOHN  H.   SUBBATT. 

Mr.  HoLLOWAY.  I  do  not. 

The  Court.  Then  70U  are  disqualified  ?    Mr.  Holloway  is  excused,  Mr.  Clerk. 

Thomas  Blagden  being  called,  said  : 

I  have  formed  an  opinion.     I  have  read  the  testimony. 

The  Court.  That  will  be  for  you  to  state,  Mr.  Blagden,  when  you  come  to 
answer  on  your  voire  dire. 
•    Riley  A.  Shinn  was  called,  and  responded. 

Richard  M.  Hall  being  called,  said : 

I  would  like  to  represent  to  your  honor  that  I  feel  that  it  would  be  almost 
impossible  for  me  to  sit  here  as  a  juror  in  this  case.  I  am  entirely  alone  in  my 
business ;  and  it  is  of  that  character — ^the  agency  business — that  not  only 
would  my  own  interests  materially  suffer  by  being  required  to  serve  as  a  juror 
in  this  case,  but  the  interests  of  a  great  many  other  persons  who  have  confided 
business  to  me.  There  are  several  matters  that  demand  my  attention  this 
week — matters  that  I  could  not  delegate  to  a  clerk  in  my  office,  as  I  do  not 
think  he  would  be  able  to  carry  on  the  transactions.  They  requure  my  per- 
sonal attention.  The  interests  of  other  persons  would  suffer,  perhaps,  a  great 
deal  more  than  my  own,  and  I  may  state  beside  that  that  I  am  living  in  the  coun- 
try with  my  family,  and  if  I  am  required  to  serve  here,  they  will  be  left  alone, 
and  in  a  very  lonely  place.  I  will,  therefore,  be  under  the  necessity  either  of 
moving  back  into  the  city,  or  providing  for  their  care  in  some  other  way. 

The  Court.  Your  excuse,  Mr.  Hall,  would  let  off  nine  out  of  every  ten  of 
the  jury. 

Mr.  Hall.  I  will  state  further  that  my  business  is  one  that  I  have  just  be- 
gun— that  of  real  estate  agency — having  just  left  the  office  of  register  of  deeds, 
and  that  in  consequence  of  its  being  so  young,  and  from  the  fact  that  I  can 
delegate  no  one  to  attend  to  it  for  me,  it  would  suffer  materially — in  fact  irre- 
parably if  I  have  to  remain  here  two  or  three  weeks. 

The  Court.  I  hope  you  will  not  have  to  stay  three  or  four  weeks. 

Thomas  J  8.  Perry  was  called,  and  responded. 

Franklin  Philp  was  called,  but  failed  to  respond. 

The  Court.  Mr.  Philp  addressed  me  a  letter.  I  do  not  know  whether  I 
have  it  or  not. 

Mr.  WfLSON.  Mr.  Gooding  (addressing  the  marshal  who  was  standing  near 
the  judge)  I  gave  you  a  letter  which  he  addressed  to  me.  I  will  state  to  the 
court  that  he  addressed  me  a  letter  saying,  that  it  would  be  necessary  for  him 
to  leave  the  city  immediately  on  matters  of  importance,  and  asking  to  be  ex- 
cused. 

The  letter  was  handed  to  the  court  by  the  marshal. 

The  Court.  Mr.  Philp  came  to  see  me  last  night,  and  I  referred  him  to  the 
attorneys  on  either  side ;  and  now  it  seems  that  he  wrote  a  letter  to  Mr.  Wilson 
stating,  that  he  was  engaged  in  public  business  which  would  require  him  to  leave 
in  this  morning's  train.     I  suppose  he  is  not  here. 

Mr.  Wilso.v.  He  is  not  here,  I  infer  from  that  letter,  although  I  told  him 
that  he  would  incur  a  grave  responsibility  by  going  away. 

The  Court.  I  told  him  he  had  better  see  Mr.  Merrick  and  Mr.  Carrington, 
or  Mr.  Wilson. 

Mr.  Mkrrick.  He  saw  me,  your  honor,  and  I  told  him  that  I  did  not  feel 
that  we  had  the  power  to  excuse  him,  and  that  the  proper  course  for  him  to 
pursue  would  be  to  present  himself  here  this  morning  to  answer  to  bis  name, 
and  to  present  to  your  honor  for  your  consideration  the  excuse  he  made  to  me. 
He  stated  to  me  that  his  excuse  was  that  at  present  being  engaged  in  public 
business,  some  matters  connected  with  the  public,  he  had,  in  execution  of  some 
of  his  business,  already  taken  passage  for  Europe  in  a  steamer  to  sail  some 
time  in  July. 

The  Marshal.  I  would  state  that  Mr.  Philp  was  served  in  person. 


TRIAL  OF  JOHN  H.  8UBRATT.  55 

The  Court.  Well,  he  is  not  here— -proceed  to  call  the  other  names. 

The  D18TICT  Attorney.  If  jonr  honor  please,  it  seems  to  me  there  onght 
to  he  some  process  to  enforce  the  attendance  of  Mr.  Philp.  He  has  been  ad- 
vised bj  the  assistant  prosecuting  officer,  and  by  counsel  representing  the  pris- 
oner, that  he  should  be  here  to  respond  to  the  summons  of  the  court,  and  if  he 
had  any  reason  to  present  why  he  should  be  excused,  to  offer  it  then.  While  I 
have  been  disposed  to  accommodate  gentlemen,  as  far  I  can,  consistently  with 
my  sense  of  duty  to  the  public,  I  now  feel  that  it  is  incumbent  upon  me 
to  interpose.  This  is  a  very  important  and  solemn  trial,  and  surely  every 
American  citizen  should  feel  that  there  is  an  obligation  resting  upon  him  to 
respond  to  any  call  which  is  made  upon  him*  by  the  court.  I  cannot  remain 
silent  when  the  case  is  presented  here  of  a  gentleman  who  has  been  served  with 
process  by  the  court  failing  to  appear  in  consequence  of  mere  private  ar- 
rangements, which  would  be  disturbed  by  his  appearing  in  court  in  answer  to 
its  summons. 

The  Court.  Do  you  ask  for  an  attachment  ? 

The  District  Attorney.  I  do  ask  for  an  attachment  against  him. 

The  Court.  Let  the  attachment  issue. 

Mr.  Bradley.  Where  is  he  ? 

Mr.  Wilson.  His  letter  states  that  he  was  going  to  New  York. 

Mr.  Bradley.  Then  he  has  gone  to  New  York  1 

Mr.  Wilson.  I  presume  so. 

The  District  Attorney.  I  wish  the  attachment  issued  and  placed  in  the 
hands  of  the  marshal  of  the  District,  and  then  I  will  feel  it  my  duty  to  take 
whatever  steps  may  be  necessary  to  vindicate  the  power  of  the  court,  and  to 
enforce  his  appearance.  1 

The  Marshal.  At  what  time  shall  the  attachment  be  returnable  ? 

The  District  Attorney.  Immediately. 

George  H.  Plant  was  called,  but  failed  to  respond. 

The  Court.  I  have  a  note  upon  my  table  from  Mr.  Plant,  in  which  he  says : 
"  I  am  subpoenaed  by  the  marshal  to  court  to-day.  I  am  advised  by  my  physi- 
cian that  I  am  too  nuwell  to  attend,  and  hope  the  court  will  excuse  me.*' 

The  District  Attorney.  If  your  honor  please,  will  you  be  kind  enough  to 
let  me  see  that  letter.  While  I  am  not  disposed,  for  a  moment,  to  discredit  any 
statement  which  Mr.  Plant  may  make,  orally  or  in  writing,  I  submit  that  it  is 
his  duty  to  appear  in  person  before  the  court,  in  obedience  to  the  summons,  if 
he  possibly  can  do  so.  If  not,  I  submit  that  it  is  his  duty  to  send  to  your  honor 
a  certificate  of  the  physician.  Surely,  sir,  if  he  was  unable  personally  to  ob- 
tain that,  he  has  friends  who  would  do  him  that  favor. 

I  again  say  that,  in  any  criminal  case  and  surely  in  a  case  of  this  importance 
(where  every  one,  although  willing  to  do  his  duty,  I  hope  desires  that  the  duty 
of  serving  as  a  juror  may  faW  upon  some  one  else,)  should  appear  in  person,  or 
he  should  satisfy  the  court  of  his  inability  personally  to  attend  in  the  manner 
▼hich  this  court  has  always  heretofore  required.  I  hope  your  honor  will  not  act 
in  this  case  in  determining  upon  the  excuses  of  jurors  upon  written  communica- 
tions of  this  kind. 

The  Court.  The  gentleman  who  handed  me  this  letter  was  informed  by  me 
that  such  a  letter  would  not  do;  that  nothing  other  than  the  certificate  of  his  phy- 
sician, stating  his  inability  to  attend  on  account  of  his  illness,  would  satisfy  the 
eourt  Perhaps  it  may  be  that  such  a  certificate  may  be  coming  forthwith  ; 
bat  it  has  not  reached  here  yet. 

Mr.  PiERRBPONT.  We  can  pass  on. 

The  DiSTicT  Attorney.  I  will  only  say,  sir,  that  if  it  is  not  coming  forth- 
with I  shall  feel  it  my  duty  to  ask  for  an  attachment. 

The  Court.  Vfry  well,  the  attachment  shall  issue. 

The  Glbbk.  Shall  I  issue  one  now  ? 


56  TRIAL   OF  JOHN  H.   SURBATT. 

The  Court.  Tes,  700  may  iesae  one  now,  bat  defer  awhile  Bending  it  oat 

Reaben  B.  Clark  was  called,  and  responded. 

John  Van  Rcswick  was  called,  and  responded. 

Samubl  p.  Brow.v  was  called,  when  he  rose  and  said :  I  will  state  to  the  coart 
that  I  have  been  oat  of  health  for  some  time,  and  under  the  treatment  of  a  physi- 
cian, and  I  have  a  certificate  here  which  I  presume  will  be  sufficient. 

The  certificate  was  then  read,  as  follows : 

"Washi.ngton,  D.  C,  June  13,  1867. 
"  I  certify  that  Mr.  S.  P.  Brown  has  been  under  my  treatment  for  a  disease  of 
his  kidneys,  which,  in  my  opinion,  renders  him  unable  to  endure  the  fatigue 
attendaut  upon  being  a  juryman. 

"JAMES  B.  KEASBY,  M.  i>" 

Mr.  Brown.  I  will  add,  that  I  have  been  out  of  health  for  some  time,  and  it 
is  impossible  for  me  to  sit  very  long  at  any  one  period. 

The  Court.  I  understand  something  about  that  Mr.  Brown.  I  cannot  object 
to  excusing  you,  sir.     You  are  excused . 

Z.  D.  Oilman  was  called,  and  responded. 

Joseph  F.  Brown  was  called,  and  responded. 

Zenas  C.  Bobbins  was  called,  and  responded. 

Cornelius  Wendell  was  called,  and  responded. 

Valentine  Harbaugh  was  called,  and  responded. 

The  Court.  I  have  here  a  certificate  from  Dr.  Elliott,  stating  that  Mr.  Har- 
baugh 18  physically  unable  to  discharge  the  duties  incumbent  upon  a  juror.  The 
certificate  adds :  '^He  is  now  under  my  professional  care.  In  addition  to  this» 
he  has  two  members  of  his  family  sick,  who  require  his  constant  attention." 

Mr.  Bradlby.  Mr.  Harbaugh  has  private  family  matters  which  need  not  be 
disclosed  publicly  here.  They  are,  to  my  personal  knowledge,  sufficient  to 
justify  the  court  in  excusing  him. 

The  Court.  I  am  satisfied  that  this  is  a  case  where  the  gentleman  ought  to 
be  excused. 

Joseph  Gerhardt  was  called,  and  responded. 

Mr.  UBRUARDT.  If  your  honor  please,  I  do  not  think  I  am  qualified.  I  do 
not  pay  any  taxes  on  real  estate.  Besides,  sir,  I  do  not  hear  well.  Persons 
have  to  speak  very  loud  to  me  in  order  to  enable  me  to  hear  them. 

The  District  Attor.vby.  Is  your  hearing  defective  with  regard  to  both  of 
your  ears  \ 

Mr.  Gbrhardt.  Yes,  sir;  but  one  a  little  more  than  the  other.     (Laughter.) 

The  District  Attornby.  I  do  not  think  there  is  any  legal  objection  to 
General  Gerhardt,  although  he  does  not  pay  any  tax  on  real  estate,  which  I  am 
surprised  to  hear,  because  I  thought  he  was  a  very  substantial  and  energetic 
citiaen,  and  thought,  therefore,  he  had  accumulated  a  considerable  amount  of 
real  estate ;  but  he  does  pay  tax  on  personal  property,  and  I  think,  although  I 
have  a  very  feeble  voice  myself,  that  I  can  make  myi^elf  heard. 

Mr.  Bradlby,  (in  rather  a  low  tone.)  He,  sitting  in  the  jury  box,  could  not 
hear  half  of  what  was  said  by  a  witness  standing  at  this  desk.  (;i  disunce  of  ten 
ieet)  Ue  can  hardly  hear  me  now.  (Mr.  Gerhanit  standing  at  this  time  between 
three  and  four  feet  from  Mr.  B.) 

Mr.  GsRHArDT.  That  is  so,  3*our  honor.    (Prolonged  laughter.) 

Mr.  Bradlby.  He  hasn't  heard  half  of  what  I  said,  although  I  spoke  loud 
enough  to  be  heard  away  outside  of  this  bar;  he  only  guessed  at  it.  (Laughter.) 
However,  it  is  none  of  my  business. 

The  Court.  How  long  have  you  been  deaf  7 

Mc  Gbrhardt.  1  am  nol  quite  deaif,  but  I  do  not  hear  well. 

The  Cocrt.  I  guess  you  can  he  made  to  hear,  Mr.  Gerhardt. 

Mb  PIbkkbfont.  Yes,  sir;  we  will  endeavor  to  speak  loud  enough. 


TRIAL  OP  JOIIN  H.  8URRATT.  57 

Mr.  Gbehabdt.  I  will  state  farther,  that  dariDg  the  war  I  was  so  disabled 
as  to  render  it  imposeible  for  me  to  sit  any  great  length  of  time.  ( Suppressed 
laughter.) 

The  Court.  Oh,  I  guess  you  can  manage  to  get  along,  Mr.  Gerhardt.  Pro* 
ceed  with  the  next,  Mr.  Clerk. 

Horatio  N.  Easbj  was  called,  and  responded. 

W.  W.  MooRB,  being  called,  said : 

I  beg  to  be  excused.  I  am  not  at  all  well.  I  have  been  unwell  for  two  or 
tbree  weeks ;  but  the  principal  reason  that  I  would  urge  why  I  desire  to  be 
excused  is,  that  I  am  engagea  in  a  business  that  will  really  suffer  if  I  am  required 
to  sit  through  this  case.  It  is  not  a  business  of  my  own,  but  one  of  public 
accommodation.  The  other  party  who  is  there  in  the  management  of  it  is  at 
present  absent  from  the  city.  It  is  the  Metropolitan  railroad  that  I  refer  to  as 
the  business  which  I  am  engaged  in  managing. 

The  District  Attorney.  How  old  are  you — are  you  sixty-fire  ? 

Mr.  Moore.  I  am  not  quite  that. 

The  District  Attorney.  I  think  it  is  hardly  necessary  for  me  to  state 
that  there  is  no  legal  objection  to  Captain  Moore,  and  the  excuse  is  hardly  suf- 
ficient. I  think,  upon  reflection,  the  juror  himself  will  see  it ;  because,  if  the 
court  in  ruling  upon  these  excuses  is  to  be  governed  by  private  considerations — 
the  fact  that  the  juror  will  be  subjected  to  private  inconvenience,  that  his  busi* 
ness  or  the  business  of  his  employer  will  suffer — ^it  is  difficult  to  imagine  when 
a  jury  can  be  had  in  this  case. 

The  Court.  Yes ;  as  much  as  I  would  desire  to  accommodate  Mr.  Moore,  he 
will  have  to  commend  himself  to  me  by  very  strong  considerations  as  to  the 
injury  that  would  result  to  his  business  from  his  absence  before  I  can  consent 
to  excuse  him  on  that  ground.  If  he  should  bring  a  certificate  from  his  physi- 
cian that  it  would  be  seriously  prejudicial  to  his  health,  it  might  be  satisfactory. 

Mr.  Moore.  I  could  easily  have  obtained  a  certificate  if  I  had  known  the 
rules  of  proceeding  here.  I  can  get  it,  your  honor,  as  soon  as  I  can  see  my 
physician. 

The  Court.  Very  well,  Mr.  Moore.    Mr.  Clerk,  pass  on  to  the  next. 

Thomas  Perry  was  called,  and  responded. 

W.  P.  Dole,  was  called,  but  failed  to  respond. 

The  Court.  Mr.  Dole  met  me  this  morning  on  my  way  to  the  court-house 
and  put  into  my  hands  this  letter : 

••Washington,  June  13,  1867. 
"Sir  :  Being  summoned  as  a  juror  to  attend  your  court,  I  beg  leave  to  say 
that  I  am  not  a  citizen  of  the  District,  and  never  was. 
**  Respectfully,  yours, 

"WILLIAM  P.  DOLE. 
"  Hon.  George  P.  Fisher." 

Mr.  Wilson.  He  is  an  owner  of  real  estate. 

The  District  Attorney.  I  will  ask  for  an  attachment  against  Mr.  Dole ; 
that  is  the  only  response  I  can  make. 

The  Court.  I  asked  him  if  he  was  a  taxpayer.  He  said  he  paid  tax  on  an 
unimproved  lot  that  he  had ;  that  makes  him  a  taxpayer.  Whether  be  is  a 
iBsident  here  or  not  I  do  not  know. 

Mr.  Wilson.  I  understand  he  has  recently  purchased  a  lot,  and  intends  soon 
to  build  a  house  on  it.     He  can  answer  for  himself  when  he  comes. 

The  Court.  Yes ;  let  the  attachment  issue. 

The  Maksbal.  There  is  one  other  that  I  have  summoned ;  his  name  is  J. 
H.  Crane.  He  was  summoned  in  the  place  of  Mr.  Mattingly,  who  was  excused 
hj  your  honor  because  of  being  over  sixty- five  years  of  age. 


58  TRIAL  OF  JOHN  H.   SURRATT. 

J.  H.  Crane  was  then  called,  and  responded. 

The  calling  of  the  list  having  been  concluded  Mr.  Elvans  said:  I  neglected 
to  state  to  your  honor  when  mj  name  was  called,  that  within  two  years  past  I 
have  served  a  full  term  as  a  grand  juror.  If  your  honor  will  allow  me  I  will 
state,  that  in  reply  to  an  inqmry  made  at  that  time  as  to  whether  the  service 
which  I  had  thus  rendered  would  exempt  me  from  further  service  for  two  years 
I  understood  your  honor  to  say  it  would.  I  would  ask  your  honor  whether  I 
understood  properly,  and  wheUier,  if  so,  I  am  not  exempt  ? 

Mr.  Bradlby.  If  that  were  so,  we  would  have  to  take  off  nearly  half  of  this 
list. 

The  District  Attorney.  I  do  not  think,  your  honor,  that  talesmen  are  ex- 
empt because  of  such  service.  I  do  not  think  there  is  any  difficulty  iEibout  it, 
sir.  I  hold  in  my  hands  the  12th  statutes,  p.  428.  The  3d  section  of  the  Act 
of  June  16,  1862,  with  which  your  honor  is  familiar,  declares  who  shall  be 
exempted.    It  says ; 

"  Be  it  further  enacted,  that  the  mayors  of  the  cities  of  Washington  and 
Greorgetown,  all  judicial  officers,  salaried  officers  of  the  government  of  the  United 
States,  commissioners  of  police,  and  those  connected  with  the  police  or  fire 
department,  counsellors  and  attomeys-at-law,  ministers  of  the  gospel  and 
priests  of  every  denomination,  practising  physicians,  surgeons,  keepers  of  hos- 
pitals, asylums,  alms-houses,  or  other  charitable  institutions  created  by,  or  under 
the  laws  relating  to  the  District  of  Columbia,  captains  and  masters,  and  other 
persons  employed  on  vessels  navigating  the  waters  of  said  district,  and  keepers 
of  public  ferries,  shall  be  exempted  from  jury  duty,  and  their  names  shall  not 
be  placed  in  the  list  aforesaid." 

Then,  your  honor  will  observe  in  the  1st  section,  what  the  law  says,  in  refer- 
ence to  those  who  have  rendered  jury  duty.     I  will  read  it : 

"  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America,  in  Congress  assembled.  That  it  shall  be  the  duty  of  the 
register  of  Washiugton  city,  and  of  the  respective  clerks  of  the  city  of  George- 
town, and  the  levy  court  of  Washington  county,  in  the  District  of  Columbia, 
within  one  mouth  after  the  passage  of  this  act,  and  on  or  before  the  first  day  of 
February  in  each  year  thereafter,  to  make  a  list  of  such  of  the  white  male  citi- 
zens, taxpayers,  residing  within  their  respective  jurisdictions,  as  they  shall 
judge  best  qualified  to  serve  as  jurors  in  the  courts  of  the  said  District  in  which 
the  lists  may  be  included,  in  the  discretion  of  the  officer  making  the  same,  the 
names  of  the  previous  year,  but  who  did  not  serve  as  jurors,  and  the  lists  thus 
made  by  the  register  and  clerks  aforesaid,  shall  be  kept  by  them  respectively, 
and  be  delivered  over  to  their  successors  in  office." 

By  implication  it  would  seem  that  these  officers  who  are  charged  with  the 
duty  of  making  out  the  list,  and  from  which  the  jury  are  to  be  selected,  shall 
be  confined  to  those  who  had  not  served  within  the  time  prescribed  before  these 
lists  were  prepared.  But  when  talesmen  are  summoned  there  is  no  limitatioD, 
as  your  honor  will  observe,  by  reference  to  the  other  sections  of  the  Act,  which 
has  been  so  frequently  brought  to  the  attention  of  your  honor. 

The  Court.  I  do  not  see  that  there  is  any  provision  in  the  act  exempting 
Mr.  Elvans. 

The  District  Attorney.  Now,  if  your  honor  please,  I  understand  that 
Captain  Moore,  one  of  the  jurors  who  requested  your  honor  to  excuse  him, 
stated  that  he  could  obtain  a  certificate  from  a  physician,  of  his  physical  ina- 
bility to  act  in  that  capacity,  and  by  the  permission  of  the  marshal,  I  believe, 
he  has  gone  to  get  a  certificate. 

Mr.  Braolby.  It  was  my  fiiult  that  he  went.  I  understood  the  court  to  say 
that  he  had  better  go  quick. 

The  District  Attornby.  I  am  not  complaining  of  the  hci  that  he  has  gone 
ftr  the  purpose  of  getting  a  certificate,  but  I  simply  desire  to  say,  althou^  it 


TRIAL  OF  JOHN  H.   8URBATT.  59 

mMj  not  be  necessarj  in  his  particular  ease,  that  I  hope  jonr  honor  will  not 
act  upon  the  written  certificate  of  a  physician,  bat  will  satisfy  yonr  own  judg- 
ment as  to  the  capacity  of  the  juror  to  serve,  from  the  personal  examination  of 
the  juror,  and  of  the  physician  upon  whose  opinion  he  relies.  They  should 
both  appear  before  the  court.  Your  honor  should  be  satisfied  from  your  own 
examination,  aided  as  far  as  it  is  possible  for  us  to  aid  you,  by  cross-examina- 
tion on  the  part  of  the  counsel  who  appear  for  either  the  government  or  the 
accused. 

The  Ck>UBT.  I  shall  examine  as  I  have  done  in  all  these  cases,  by  putting 
quesdons  to  them  myself. 

Mr.  BsADLBY.  There  have  now  been  seven  jurors  excused  out  of  the  twenty- 
six.     We  want  to  get  them  before  the  pand  is  attempted  to  be  selected  for  this  case. 

The  Court.  Is  there  any  objection  to  thati 

Mr.  Bradlby.  I  believe  there  is  no  objection,  sir. 

The  Court.  A  juryman  has  been  sommoned  in  the  place  of  Mr.  Mattingly, 
who  waa  excused,  being  disqualified  by  over  age. 

Mr.  Bradlby.  Then  six  only  are  to  be  summoned. 

The  Court.  Gentlemen  the  marshal  informs  me  that  it  will  probably  take 
him  until  about  one  o'clock  before  he  can  have  the  parties  here  who  will  be 
rammoned  in  the  place  of  those  who  have  been  excused.  If  you  have  no  ob- 
jection we  will  take  a  recess  until  that  time,  and  let  these  gentlemen  who  are 
here,  and  who  have  some  business  to  attend  to,  go  until  that  time. 

Mr.  M  BR  RICK.  Before  your  honor  takes  any  action  in  the  matter,  I  would 
like  to  consult  with  Mr.  Bradley  in  relation  to  something  that  may  facilitate  our 
action  after  one  o'clock. 

After  a  brief  consultation,  Mr.  Merrick  said :  What  we  were  going  to  suggest 
to  your  honor  is  this  :  That  whilst  the  jury,  of  course,  in  accordance  with  the 
suggestion  of  the  court,  can  leave  the  room  until  the  time  indicated,  we  on  both 
Bides  think  that  it  will  hasten  the  matter  if  the  marshal,  instead  of  simply 
bringing  in  at  one  o'clock,  seven  jurors  to  supply  the  place  of  those  excused, 
would  bring  in  about  twenty,  in  view  of  the  fact  which  has  become  apparent 
that  a  great  many  will  seek  to  be  excused.  One  juror  who  is  present  has  indi- 
cated to  your  honor  an  excuse,  which  will  have  to  be  considered  when  he  comes 
upon  his  voire  dire,  and  which  will  probably  show  him  to  be  disqualified,  and 
we  do  not  know  how  far  that  examination— on  the  voire  dire — of  the  others 
may  thin  the  panel. 

Mr.  PiERREPONT.  I  think  we  quite  agree  to  that,  your  honor,  if  it  is  within 
the  law,  and  I  suppose  it  is,  though  I  do  not  pretend  to  know  about  it. 

The  Court.  1  am  rather  doubtful  about  it. 

Mr.  Bradley.  Your  honor  will  pardon  me,  but  by  turning  to  the  act  of  De- 
cember, 1865,  I  think  you  will  find  an  exposition. 

The  Court.  Let  us  see  what  that  act  is,  because  this  7th  section  only  gives 
the  power  to  order  a  sufficient  number  of  jurors  to  make  up  the  panel. 

Mr.  Bradley.  You  have  ordered  that,  and  now  as  I  understand  it,  it  is  left 
to  the  discretion  of  the  court  to  summon  as  many  more  as  may  be  necessary. 

The  Court.  I  am  doubtful,  Mr.  Bradley,  and  I  do  not  know  whether  we  had 
not  better  go  on,  unless  there  is  something  in  that  act,  and  examine  these  gen- 
tlemen upon  their  voire  dire,  so  as  to  get  what  you  can  from  this  panel  which 
has  already  been  made  up.  I  think  that  would  be  the  legitimate  mode  of  pro- 
ceeding with  this  business. 

Mr.  Bradley.  We  cannot  proceed,  if  your  honor  please,  to  select  a  jury  until 
the  panel  of  twenty-six  is  complete.     We  have  the  right  out  of  that  twenty-six. 

The  Court.  I  see  the  act  or  1865  does  not  bear  upon  this  Question  at  all. 

Mr.  PiBRRBPONT.  I  have  not,  if  your  honor  please,  the  slightest  doubt  of 
tleur  right  to  have  the  fullest  panel,  but  there  cannot  certainly  be  any  irregu- 
larity m  going  on. 


60  TRIAL  OF  JOHN  H.  8URRATT. 

3Ir.  Mbbbick.  We  object  to  tbat    We  require  tbe  panel  to  be  foil. 

Mr.  PiBRREPOXT.  We  have  not  a  word  to  say  if  tbey  require  it- 

The  Court.  Then  there  is  no  other  course  left  but  for  the  court  to  take  a 

recess  until  one  o'clock. 

The  court  thereupon  took  a  recess  until  the  hour  named. 

A  few  minutes  after  one  o'clock  the  court  was  reconvened,  when 

The  Court  said :  One  of  the  parties  who  served  the  subpcena  on  Mr.  Plant 

yesterday,  brings  me  this  note: 

"Washington,  D.C,  June  1, 1867. 
"  I  certify  that  I  have  occasionally  attended  Mr.  Greorge  H.  Plant  with  nephre- 
tie,  brought  about  by  ^tigue  and  exposure.     I  would  judge  that  the  duties 
of  a  juror  would  tend  to  aggravate  his  disease. 

"JOHN  C.  RILEY,  M.  Dr 

The  Court.  I  do  not  know  whether  Mr.  Plant  is  in  the  city  or  not. 

The  Marshal.  No,  sir;  he  is  in  Baltimore. 

The  Court.  Mr.  Moore  hands  me  the  following  certificate: 

«*  Washington,  D.  C,  June  13,  1867. 

"  This  is  to  certify  that  Mr.  W.  W.  Moore  has  been  for  many  years  a  patient 
of  mine,  and  from  my  knowledge  of  his  constitution  and  condition  of  health  I 
would  regard  him  as  unfit  for  performing  the  duties  of  a  juror  without  the  risk 
of  being  himself  injured  by  the  confinement,  and  the  peculiar  duties  which 
would  devolve  upon  him. 

"  W.  P.  JOHNSON,  Af.  D." 

The  Court.  Upon  examination  of  Mr,  Moore  I  do  not  think  that  he  would 
be  able  to  withstand  the  fatigue  of  a  trial  of  this  sort,  and  I  purpose  excusing 
him.  I  have  no  doubt  he  would  make  a  most  excellent  juryman,  if  he  could 
only  stand  the  fatigue.     He  is  therefore  excused. 

The  Clerk  then  proceeded  to  call  the  names  of  the  six  additional  jurors  who 
had  been  summoned  during  the  recess. 

William  M.  Shuster  was  called,  but  failed  to  respond. 

Robert  Ball  was  called,  and  responded. 

Henry  M.  Knight  was  called,  and  responded. 

John  F.  Ellis  was  called,  and  responded. 

Samuel  Fowler  was  called,  but  failed  to  respond. 

Terrence  Drury  was  called,  and  responded. 

The  Clerk.  Four  out  of  the  six  answer,  your  honor. 

The  Court.  What  are  the  names  of  the  absent  ones. 

The  Clbrk.  Mr.  Shuster  and  Mr.  Fowler  do  not  respond. 

The  Marshal.  Mr.  Shuster  was  served  by  copy.  He  was  not  at  his  house, 
but  his  wife  expected  him  there  between  twelve  and  one.  He  was  served  with 
a  copy,  and  it  may  be  that  he  has  not  received  it.  As  to  Mr.  Fowler,  he  was 
served  in  person. 

Mr.  Bradley.  There  are  two  Mr.  Samuel  Fowlers;  which  one  is  it? 

The  Marshal.  The  banker. 

The  District  Attorney.  I  feel  it  my  duty  to  ask  for  an  attachment  against 
Mr.  Fowler. 

The  Court.  Let  the  attachment  issue. 

Mr.  Bradley.  He  will  be  here  I  am  sure,  for  he  is  a  law-abiding  citizen. 

The  Marshal.  I  would  here  state,  your  honor,  that  Mr.  Dole,  for  whom  an 
attachment  was  issued,  is  not  to  be  found,  and  that  Mr.  Plant,  for  whom  an  at- 
tachment was  also  issued,  has  gone  to  Baltimore. 

The  court  then  directed  the  clerk  to  call  over  the  names  of  those  who  had 
responded,  and  were  present. 


TRIAL  OF  JOHN  H.  BURRATT.  61 

The  Clerk  proceeded  to  call  as  follows : 

William  B.  Todd,  William  H.  Tennej,  John  B.  Elvans,  Thomas  Blagden, 
Bilej  A.  Shimi,  Richard  M.  HalL 

Mr.  Bradlbv.  He  has  gone  to  get  a  certificate  of  attomej. 

Thomas  J.  S.  Perrj,  Beuhen  B.  Clark,  Joha  Van  Beswick,  Zadok  D.  Oilman, 
Joseph  F.  Brown,  Zenas  C  Bobbins,  Cornelius  Wendell,  Joseph  Gerhardt. 

Mr.  Bradley.  He  is  with  his  physician  in  the  ante-chamber. 

Horatio  N.  Easby,  Thomas  Berry,  John  H.  Crane,  William  M.  Shoster. 

Mr.  Bradley.  He  is  not  present. 

Bobert  Ball,  Henry  M.  Knight,  John  F.  Ellis- 

The  Clerk.  Including  those  who  have  been  summoned,  but  who  are  not  here 
at  this  moment,  there  are  twenty-four,  your  honor. 

Mr.  Pibrrepont.  Does  your  honor  find  that  there  would  be  any  objection  to 
having  an  order  made  that  some  fifteen  or  twenty,  or  some  larger  number,  be 
subpoenaed,  if  we  on  both  sides  consent  to  iti  We  are  all  desirous  of  consent- 
ing to  that,  either  orally,  or  in  writing. 

Mr.  Bradley.  It  will  not  appear  of  record,  sir,  how  many  are  summoned, 
if  there  are  enough  summoned  to  make  up  the  panel. 

Mr.  PiERBBPONT.  That  is  all  we  want  on  both  sides. 

The  Clerk.  O,  yes,  it  will  appear  of  record.  The  subsequent  order  to  fill 
the  vacancies  which  have  occurred,  will  appear. 

Mr.  Pierrepont.  Would  there  be  any  error  in  it  if  it  did  so  appear? 

The  Court.  I  fear  there  might  be. 

Mr.  Pierrepont.  Well,  sir,  we  do  not  want  any  en*or.  We  only  want  to 
show  that  we  on  both  sides  are  anxious  to  facilitate  the  matter  in  any  way  we 
can. 

The  Court.  As  I  understand,  all  the  jurors  who  have  been  properly  sum- 
moned answer,  with  the  exception  of  two,  Messrs.  Dole  and  Plant,  who  are 
returned  non  est. 

Mr.  Samuel  Fowler  being  brought  in  at  this  stage  of  the  proceedings,  under 
attachment, 

The  Court  said :  Mr.  Fowler,  you  were  attached  for  non-obedience  to  the 
sommons  of  the  court  to  be  here  at  one  o'clock. 

Mr.  Fowler.  I  meant  no  disrespect  to  the  court,  sir ;  I  intended  to  come  in 
time,  but  mistook  the  hour. 

The  Court.  I  suppose  we  will  have  to  excuse  you  under  those  circum- 
stances, as  you  are  pretty  near  the  time.     (It  being  then  half-past  one. — Bep.) 

The  Court.  You  have  twenty-two  jurors,  gentlemen,  now  in  attendance  for 
this  panel.     You,  therefore,  require  four  more. 

The  Clerk.  An  attachment  is  out  for  two — Messrs.  Dole  and  Plant. 

The  Court.  Yes ;  but  those  attachments  cannot,  in  all  probability,  be  served 
to-day. 

Mr.  Merrick.  The  panel  would  be  one  short  even  were  those  who  have  been 
attached  here. 

The  Court.  Yes,  sir ;  inasmuch  as  Mr.  Moore  has  been  excused  since. 

Mr.  Merrick.  We  want  one  more,  anyhow. 

The  Marshal.  We  can  get  him  in  twen^  minutes,  I  think. 

William  Morrison,  J.  Bussell  Barr,  and  Jedediah  Giddings  next  appeared  in 
court,  in  obedience  to  the  summons  of  the  marshal  completing  the  panel  of 
twenty-six  jurors. 

Mr.  Bradley.  If  your  honor  please,  we  are  ready  to  proceed  to  empanel  the 
jniy.    Before  doing  so,  however,  we  think  it  our  duty,  in  behalf  of  the  prisoner, 

to  file  our  challenge  to  the  present  array.     Your  honor  has  virtually  decided  the 
question,  and  we  do  not  desire  to  take  up  any  time  in  its  argument.    We  simply 
wish  that  it  may  be  filed,  so  that  it  may  be  passed  upon. 
Mr.  Bradley  then  handed  to  the  clerk  the  following  challenge: 


62  TRIAL  OF  JOHN  H.  8UBRATT. 

"  In  the  Supieme  Conrt  of  the  District  of  Columbia-  The  United  States  w . 
John  H.  Surratt.     In  the  Criminal  Court,  March  term,  1867. 

"And  the  said  marshal  of  the  District  of  Columbia,  in  obedience  to  the  order 
of  the  court,  made  in  this  cause  on  the  12th  of  June  instant,  this  daj  makes  re- 
turn that  he  hath  summoned,  and  now  hath  in  court  here,  twenty-six  jnrorst 
talesmen,  as  a  panel  from  which  to  form  a  jury  to  try  the  said  cause,  and  die 
names  of  the  said  twenty-six  jurors  so  returned  being  called  by  the  clerk  of  said 
court,  and  they  having  answered  to  their  names  as  they  were  called,  the  said 
John  H.  Surratt,  by  his  attorneys,  doth  challenge  the  array  of  the  said  panel, 
because  he  saith  it  doth  plainly  appear  by  the  records  and  proceedings  of  the 
court  in  this  cause  that  no  jurors  have  ever  been  summoned  according  to  law  to 
serve  during  the  present  term  of  this  court;  that  no  panel  has  ever  been  lawfully 
returned  to  this  present  term  of  the  couit,  and  no  names  of  jurors,  duly  and  law- 
fully summoned,  have  been  placed  in  the  box  provided  for  in  the  fourth  section 
of  the  act  of  Congress,  entitled,  "  An  act  providing  for  the  selection  of  jurors  to 
serve  in  the  several  courts  of  the  District,"  approved  16th  June,  1862,  on  or 
before  the  Ist  of  February,  1867,  to  serve  for  the  ensuing  year,  wherefore  he 
prays  judgment  that  the  panel  now  returned  by  the  said  marshal,  and  now  in 
court  here,  be  quashed. 

"MERRICK,  BRADLEY  &  BRADLEY, 

''Attorneys for  Surratt:' 

After  consultation  on  the  part  of  counsel  on  behalf  of  the  United  States  and 
for  the  prisoner,  the  following  names  were  presented  to  the  court  as  having  been 
mutually  agreed  upon  as  the  jurors  in  the  case  : 

William  B.  Todd,  John  P.  Elvans,  Thomas  Blagden,  Richard  M.  Hall, 
Thomas  J.  S.  Perry,  William  H.  Shuster,  Z.  D.  Gilman,  Horatio  N.  Easby, 
Thomas  Berry,  Robert  Ball,  Samuel  Fowler,  and  J.  Russell  Barr,  all  of  whom, 
except  Mr.  Barr,  were  directed  to  appear  at  the  book  to  be  sworn  in  as  jurors. 

Mr.  Blagden,  (one  of  the  jurors.)  I  wie^h  to  repeat  the  objection  that  1  made 
this  morning,  that  I  feel  myself  unfit  to  act  as  juror  in  this  case.  I  have  both 
formed  and  expressed  an  opinion  upon  it. 

The  Court.  Have  you  formed  a  decided  opinion  ? 

Mr.  Blagdbn.  I  have  done  so,  sir. 

Mr.  PiERREPONT.  I  hope  your  honor  will  ascertain  whether  this  gentleman 
has  formed  such  an  opinion  that  he  would  not  be  governed  by  the  law  and  the 
evidence  as  it  may  be  brought  before  him.  He  has  not  heard  any  evidence  in 
the  case. 

The  District  Attorney.  I  may  say,  if  your  honor  please,  tliat  this  doc- 
trine of  the  gentleman  being  disqualified  to  act  as  a  juror  because  of  bis  having 
expressed  an  opinion,  should  be  the  subject  of  inquiry  as  to  whether  he  has 
formed  an  opinion  on  all  the  evidence,  and  as  to  whether  he  would  not  be  pre- 
pared to  decide  according  to  the  law  and  evidence. 

The  Court.  If  he  is  sworn  on  his  voire  dire  I  will  try  to  ascertain  that  fact. 

The  District  Attorney.  We  do  not  care  to  have  that  done.  We  are 
willing  to  trust  this  gentleman  in  his  judgment  on  the  law  and  the  evidence. 

Mr.  Blagden.  If  the  court  please,  I  have  read  a  great  deal  upon  this  subject 
and  have  formed  my  opinion  very  decidedly. 

Mr.  Fowler,  (a  juror.)  That,  also,  is  my  case. 

Mr.  Gilman,  (a  juror.)  And  mine. 

Mr.  Perry,  (a  juror.)  And  mine;  and  besides, I  am  opposed  to  capital  pun- 
ishment. 

Mr.  Gilman.  I,  also,  am  opposed  to  capital  punishment. 

Mr.  Pierrepont.  Let  me  say  to  the  court  that  we  have  agreed,  upon  both 
sides,  not  to  ask  any  of  these  gentlemen  to  be  sworn  upon  their  voir  dire  until 
we  believe  they  are  such  men  as  will  render  a  verdict  in  accordance  with  the 


TBIAL  OF  JOHK  H.  BUSRATT.  63 

law  and  the  eridenee.    There  has  not  been  one  word  of  evidence  pabliahed, 
ezeept  8nch  as  maj  have  appeared  in  the  newspapers. 

The  OocRT.  One  gentleman  says,  however,  he  is  conscientionslj  opposed  to 
capital  pnnisfament. 

Mr.  PiBBBBFONT.  We  should  like  to  know  whether  his  scmples  would  go 
to  the  extent  that  he  could  not  conscientiously  bring  in  a  verdict  according  to 
the  law  anid  the  evidence. 

The  CorBT.  That  would  be  a  proper  test  by  which  to  ascertain  the  extent 
of  his  conscientious  convictions. 

Mr.  PiBBBBPONT.  I  wish  these  gentlemen  would  consider  this  Question  a  little 
in  the  light  of  a  duty  to  the  public.  The  counsel  on  both  sides  have,  with 
more  conrtesy  towards  each  other,  such  as  I  have  never  seen  in  the  whole 
course  of  my  experience,  tried  to  get  a  jury  of  eminent  citizens  who  were 
honest,  and  who  were  above  suspicion,  against  whose  verdict  nobody  could  raise 
a  whisper.  We  have  earnestly  desired  to  produce  that  result  and  had  hoped 
we  had  accomplished  it.  We  think  jurymen  owe  something  to  the  community 
in  which  they  live. 

Mr.  Shustbb,  (one  of  the  jurors.)  While  appreciating  the  compliment  given  to 
us,  I  think  that  probably  some  of  us,  and  I  most  assuredly,  have  formed  and 
entertained  deciaed  opinions  in  regard  to  this  case.  I  speak  for  myself,  and 
others,  as  the  question  has  been  discussed  among  those  who  are  here  as  jurors. 

Mr.  PiBRBBPONT.  Before  proceeding  further,  I  hope  the  court  will  ascertain 
from  the  jurors  who  suggest  conscientious  scruples  on  the  subject  of  capital 
punishment,  to  what  extent  his  conscientious  scmples  go. 

Mr.  Merrick.  I  hope  I  may  do  something  to  facilitate  the  obtaining  of  this 
panel.  A  jury  sitting  in  the  case  has  but  ve^y  little  to  do  with  the  con- 
sequences of  their  verdict.  They  are  sworn  to  find  a  verdict  according  to  the 
law  and  evidence.  The  sentence  on  their  verdict  is  a  matter  which,  as  good 
citizens,  they  have  nothing  to  do  with  in  their  capacity  as  jurors.  If  they  are 
opposed  to  capital  punishment,  in  their  political  relations  to  the  government  as 
Citizens,  they  may  exert  their  influence  in  having  the  law  providing  for  capital 
niiishment  modified ;  but  as  jurors,  in  the  box,  they  have  nothing  to  do 
ut  to  render  their  verdict  in  accordance  with  the  law  and  the  evidence. 

The  Court,  Still,  when  a  person  is  called  to  be  sworn  as  a  juror  in  a  capital 
ca»e,  if,  on  the  one  hand,  he  shall  say  that  such  are  his  conscientious  scruples 
that  he  could  not,  no  matter  how  strong  the  evidence  might  be,  render  a  veniict 
of  guilty,  it  seems  to  me  that  the  court  would  not  be  justified  in  admitting  that 
juror  to  be  sworn.  While  on  the  other  hand,  if  he  declared  to  the  court  that 
while  he  has  formed  and  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  party,  which  opinion  it  would  not  be  possible  or  probable  that  any 
evidence  might  overcome,  such  person  would  not,  I  think,  be  a  proper  person 
to  discharge  the  duties  devolving  upon  him  as  a  juror  by  the  law. 

Mr.  GiLMAN,  (a  juror.)  I  have  formed  and  expressed  an  opinion  publicly. 
I  sm  decidedly  prejudiced  in  the  case.  I  do  not  think  any  evidence  I  might 
bear  would  change  my  view  upon  the  subject. 

Mr.  Easbv  (a  juror.)  I  beg  leave  to  say,  with  the  permission  of  the  court, 
that  I  think  it  nothing  more  than  fair  that  jurors  be  permitted  to  express  their 
opiuion  upon  this  subject.  This  case  has  been  discussed  in  the  newspapers ; 
the  evidence  given  on  the  trial  of  the  other  conspirators  in  the  assassination  of 
Mr.  Lincoln  has  been  published,  and  for  myself  I  must  confess  that  I  am  deci- 
dedly biased  in  such  a  way  that  I  do  not  feel  that  I  could  do  justice  in  this 
case  ;  whether  I  might  do  injustice  to  the  prisoner,  or  to  the  public,  is  a  matter  I 
cannot  say  ;  but  I  do  not  feel  that  I  am  in  such  a  condition  of  mind  as  to  enable  me 
to  8it  upon  this  jury.  I  do  not  feel  like  taking  the  life  of  this  man  in  my  hands. 
I  feel  utterly  disqualified,  and  1  beg  to  protest  against  being  compelled  to  sit 
on  the  jury  in  this  case.    These  gentlemen  for  the  prosecution  and  defence  have 


I 


64  TBIAL  OF  JOHN  H.  8UBRATT. 

arranged  the  matter  to  snit  themselves,  and  have  referred  in  a  very  complimen- 
tary manner  to  those  who  have  heen  selected,  hat  while  appreciating  compli- 
ments, we  cannot  say  for  ourselves  that  if  we  acquit  this  man  we  shall  he  per- 
fectly satisfied  with  the  verdict,  or  if  we  convict  him  we  shall  satisfy  our  own 
conscience.  For  myself  at  least,  I  repeat,  that  I  feel  myself  utterly  disquali- 
fied to  sit  upon  this  jury.  I  should  feel  that  I  was  committing  murder  if  I 
should  hring  in  a  verdict  of  guilty,  and  I  might  feel  if  I  brought  in  a  verdict  of 
not  guilty,  that  I  was  instrumental  in  putting  forth  a  man  upon  the  public  who 
was  guilty  of  murder.  I  am  not  in  a  proper  state  of  mind  to  try  the  case.  If 
the  court  chooses,  however,  to  compel  me  to  sit  upon  the  jury  under  the  cir- 
cumstances ;  of  course  I  cannot  help  it,  I  should  hear  the  evidence  and  endeavor 
to  bring  in  a  verdict  according  to  the  law  and  the  evidence,  and  although  against 
my  own  convictions  of  right  and  wrong.  The  responsibility  will  rest  upon  some 
one  else,  not  upon  me. 

The  Court.  After  having  heard  what  has  heen  said  by  the  jurors,  I  do  not 
see  any  other  course  than  to  put  each  man  upon  his  voire  dire. 

Mr.  Bradley.  That  is  our  opinion  upon  both  sides,  we  have  done  our  best 
upon  both  sides,  and  I  think  that  at  least  we  deserve  credit  for  the  spirit  we 
have  manifested. 

The  Court.  The  counsel  on  both  sides  deserve  great  credit  for  the  efforts 
they  have  made  on  this  occasion.  The  jurors  summoned  will  now  be  exam* 
ined  in  order  upon  their  voire  dire. 

William  B.  Todd,  sworn  upon  his  voire  dire,  and  examined  as  follows : 
By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  regard  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Snrratt  ? 

A.  To  a  certain  extent  I  may  have  formed  an  opinion,  I  do  not  remember 
having  expressed  an  opinion. 

Q.  Would  that  opinion  have  such  a  influence  upon  your  judgment  that  you 
would  not  be  able,  upon  the  oath  you  have  taken  in  consequence  of  such  opinion, 
whatever  may  be  the  extent  of  it,  to  render  a  fair,  honest,  and  impartial  verdict 
upon  the  evidence  adduced  on  both  sides  in  the  trial  ? 

A.  I  do  not  think  it  would. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in 
a  case  in  which  the  punishment  shall  be  death,  provided  the  evidence  should 
warrant  you  in  finding  such  a  verdict  ? 

A.  None  at  all. 

The  Court.  Does  the  counsel  for  the  United  States  wish  to  challenge  this 
juror. 

The  District  Attorn k  v.  The  court  will  remember  that  this  question  arose 
a  short  time  ago  for  the  first  time  since  the  passage  of  the  act  of  Congress  giv- 
ing to  the  United  States  Ave  peremptory  challenges.  I  then  submitted  whether 
it  was  right  to  require  the  United  States  first  to  challenge  a  juror  if  it  desires  to 
do  so. 

The  Court.  The  law  is  silent  upon  that  subject,  and  in  this  instance  the  rule 
will  be  established  to  require  the  counsel  to  alternate  in  the  order  of  their  chal- 
lenge. 

No  challenge  having  been  made,  Mr.  Todd  was  accordingly  sworn  in  as  a 
juror. 

William  H.  Tbnney,  duly  sworn  and  examined  upon  his  voire  dire^  as  fol- 
lows : 

By  the  Court  : 
Q.  Have  you  formed  or  expresed  an  opinion  in  relation  to  the  guilt  or  inno- 
\  of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 


TRIAL   OP  JOHN  H.   8DERATT.  65 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  I  have. 

Q.  Under  the  oath  70a  have  taken,  do  you  say  to  the  court  that  that  opinion, 
80  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner  after  having  heard  all  the  tes- 
timony in  the  case  ? 

A.  I  think  I  could  give  as  good  a  verdict  as  if  I  had  never  heard  of  Surratt. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty 
where  the  punishment  is  death,  provideJ  the  evidence  be  such  as  would  satisfy 
you  of  the  guilt  of  the  party  accused  ? 

A.  I  have  none. 

Q.  But  you  say  you  have  formed  and  expressed  an  opinion  as  to  the  guilt  or 
imiocence  of  the  party  accused  ? 

A.  I  have. 

By  the  Distbict  Attohnbv 

Q.  Will  you  state  when  and  to  whom  you  have  expressed  that  opinion  ? 

A.  I  have  expressed  the  opinion  generally,  in  conversation  with  my  family. 

Q.  Upon  what  evidence  was  this  opinion  based  ? 

A.  Not  upon  any  evidence,  but  upon  common  report,  such  as  Surratts  leav- 
ing the  country. 

Q.  That  is  all  ? 

A.  That  is  all.     Not  upon  any  knowledge  of  the  facts  of  the  case,  or  from 
hearing  any  evidence  in  relation  to  it.     Upon  common  report,  such  as  Surratts 
escaping  from  the  country. 
By  Mr.  Bbadlbv  : 

Q.  Have  you  not  talked  very  freely  on  the  subject,  and  expressed  your 
opinions  very  decidedly  ? 

A.  I  do  not  think  I  have  expressed  any  opinion  publicly.  It  has  been  in 
casual  conversation  with  my  family.  It  may  be  possible  that  I  have  expressed 
it  to  others  than  to  members  of  my  family,  but  I  do  not  think  I  have. 

The  CouBT.  I  think,  under  the  ruling  of  Judge  Marshall,  in  the  case  of  Burr, 
tb is  juror  is  exceptionable. 

The  Distbict  Attoknev.  I  hope,  before  ruling  definitely  upon  that  question, 
tbe  court  will  hear  argument  upon  it.  I  had  prepared  myself  upon  this  ques- 
tion, knowing  it  to  be  one  of  great  importance.  In  a  case  of  such  notoriety  as 
this,  I  suppose  there  is  hardly  an  intelligent  man  in  the  whole  country  who  has 
not,  to  some  extent,  formed  and  expressed  an  opinion.  I  hope  your  honor  will 
not  consider  it  presumption  on  my  part,  in  asking  to  be  heard  upon  it. 

The  CoLBT.  I  have  no  pride  of  opinion  upon  the  subject,  and  am  ready  to 
hear  argument  upon  it.  It  will,  perhaps,  be  better  to  go  through  with  the  ex- 
amination of  the  other  jurymen,  and  let  this  question  be  argued  to-morrow.  Mr. 
Tenney  will  stand  aside  for  the  present. 

John  B.  Elvans,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows  : 
By  the  Coubt  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  Yes,  sir. 

^.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
>o  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 

testimAfiv  in  til  A  rnjiA  ? 


$6  TRIAL   OF   JOHN   H.   8URBATT. 

A.  Your  honor  will  allow  me  to  eay  that  I  have  expresBed  myself  bo  deci- 
dedly, and  in  such  a  manner  as  would  lead  me  to  fear  the  ImpresBlonB  of  the 
community  as  to  my  ability  or  disposition  to  render  a  fair  verdict.  1  believe, 
personally,  that  I  am  sufficiently  dispassionate  to  be  able  to  render  a  verdict  in 
accordance  with  the  evidence.  But  I  fear  the  effect  of  the  public  manner  in 
which  I  have  spoken  of  this  particular  case  on  the  community  as  to  my  dispo- 
sition to  give  a  fair  verdict. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in  a 
case  in  which  the  punishment  is  death,  provided  the  evidence  shall  satisfy  you 
of  the  guilt  of  the  party  1 

A.  None  at  all. 

The  Court.  You  will  stand  aside  for  the  present. 

Thomas  Blagdbn,  duly  sworn  and  examined  upon  his  voire  dirct  as  follows: 
By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  I  have. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  or  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  tiie 
testimony  in  the  case  ? 

A.  I  should  fear  it  would. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in  a 
case  where  the  punishment  is  death,  provided  the  evidence  shall  warrant  you 
in  that  finding  ? 

A.  I  have  not. 

The  Court.  You  may  stand  aside  for  the  present. 

Riley  A.  Shinn,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows : 
By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  1 

A.  Yes,  sir. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  1 

A.  I  fear  it  would,  though  I  do  not  know  what  the  evidence  may  be. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in  a 
case  where  the  punishment  is  death,  provided  the  evidence  shall  warrant  yoa 
in  such  finding? 

A.  Not  in  the  least. 

By  the  District  Attorney  : 
Q.  Where  did  you  express  this  opinion  ? 
A.  While  the  trial  was  going  on  at  the  arsenal. 

Q.  Upon  what  endence  or  what  information  was  this  opinion,  which  you  ex- 
pressed, based? 

A.  From  reading  the  evidence  on  the  trial  of  the  others. 
Q.  Where  did  you  read  that  evidence  ? 


TRIAL  OF  JOHN   H.   8URSATT.  67 

A.  In  a  book  published  by  the  government.     I  have  one  of  those  books. 
The  Goi}RT.  You  may  stand  aside  for  the  present. 

Richard  M.  Hall,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  Yes,  sir;  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  Yes,  sir. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  There  are  some  facts  in  connection  with  the  case  that  1  think  would  very 
strongly  prejudice  my  mind. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty 
in  a  case  where  the  punishment  is  death,  provided  the  evidence  is  such  as  to 
warrant  that  finding? 

A.  I  have  not. 

By  the  District  Attorney  : 

Q.  Do  you  suppose  that  if  the  evidence  were  entirely  different  from  what  you: 
have  seen,  your  mind  has  been  so  far  affected  by  what  you  have  read  that  yout 
would  be  unable  to  do  justice  in  this  case  ? 

A.  It  has  not  been  altogether  upon  the  evidence  I  have  read  that  I  have- 
formed  an  opinion  about  it.  There  are  circumstances  that  always  attend  certain, 
occurrences  which  produce  their  effect,  and  there  are  some  circumstances  in  con- 
nection with  this  case  that  have  constantly,  from  the  beginning,  warped  my  judg- 
ment. I  do  not  know  whether  I  would  be  able  to  overcome  them.  It  would, 
have  to  be  pretty  strong  evidence. 

Q.  Do  you  mean  to  say  that  your  prejudices  and  feelings  have  been  so  ext- 
cited  that  you  would  be  unabl<}  to  decide  according  to  the  law  and  the  evidence,, 
upon  your  oath  as  a  juror  1 

A  I  would,  if  compelled  to  sit  as  a  juror,  listen  to  the  facts  and  to  the  evi- 
dence, but  I  have  no  hesitancy  in  saying  that  my  judgment  would  be  greatly 
iDflaenced  by  circumstances. 

By  Mr.  Bradlby: 
Q.  That  is  to  say  all  the  evidence  would  come  to  you  through  a  ])rejudiced. 
medium  ? 
A.  Yes,  sir. 
The  Court.  You  may  stand  aside  for  the  present. 

Thomas  J.  S.  Pbrry,  duly  sworn  and  examined  upon  his  wire  dire,  as  fbl- 
Wb: 

By  the  Court: 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt? 

A.  I  think  I  did  at  the  time  of  the  trial,  two  years  ago. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  Yes,  sir. 

Q.  Under  the  oath  you  have  taken  do  you  say  to  the  court  that  that  opinion, 
^formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after,  having  heard  all  the 
teatimony  in  the  case  I 


68  TBIAL  OF  JOHN  H.   SUBB^TT. 

A.  I  do  not  think  it  would. 

Q.  Have  yon  conscientious  scruples  against  rendering  a  verdict  of  guilty 
in  a  case  wLere  the  punishment  is  death,  provided  the  evidence  shall  satisfy 
you  of  such  finding  f 

A.  I  have. 

Q.  Have  you  such  scruples  as  would  prevent  you  from  rendering  a  verdict 
of  guilty  in  such  case? 

A.  I  think  I  have. 

The  GouDT.  You  are  discharged. 

Reuben  B.  Clarice,  duly  sworn  and  examined  upon  his  voire  dire,  as  fol- 
lows: 

By  the  Coubt  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have,  sir,  decidedly. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  Yes,  sir. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering 
a  verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  I  think  it  would  influence  my  opinion. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in 
a  case  where  the  punishment  is  death,  provided  the  evidence  shall  satisfy  you 
of  such  finding  ? 

A.  None  at  all. 

By  the  Distbict  Attorney  : 

Q.  When  was  that  opinion  formed  and  expressed  ? 
A.  It  was  formed  in  the  early  part  of  the  trial  below  there. 
Q.  Upon  what  evidence  or  information  was  this  opinion  based  ? 
A.  From  common  rumor,  and  from  what  I  could  gather  by  being  at  the 
court  below. 

Q.  How  often  did  you  attend  that  trial  ? 

A.  About  three  or  four  days,  I  judge. 

Q.  Did  you  read  the  evidence  ? 

A.  I  read  the  evidence. 

Q.  The  whole  evidence  on  that  trial  ? 

A.  I  read  it  from  newspaper  reports  as  published  in  the  Intelligencer. 

The  Court.  You  are  excused  from  further  attendance. 

John  Van  Hiswick,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows: 
By  the  Court  : 

Q.  Hac^  jou  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  John  H.  Surratt,  the  prisoner  at  the  bar  ? 

A.  I  am  not  aware  that  I  ever  have  either  formed  or  expreBsed  an  opinion. 

Q.  Have  you  any  conscientious  scruples  against  rendering  a  verdict  of  guilty 
in  a  case  in  which  the  punishment  is  death,  provided  the  evidence  shall  warrant 
you  in  such  a  finding  ? 

A.  I  have  not. 

By  Mr.  Pierrbpont: 

Q.  Do  youilive  in  Washington  ? 

A.  Ida 

Q.  Were  you  here  at  the  time  of  the  former  trial  of  the  conspirators  ? 

A.  I  was. 


TRIAL  OF  JOHN  H    8URBATT.  69 

Q.  Did  yon  read  the  evidence  on  that  trial  ? 

A.  I  believe  I  did. 

Q.  Did  yoa  express  or  form  any  opinion  as  to  the  effect  of  it  ? 

A.  None,  so  far  as  the  prisoner  is  concerned. 

Q.  And  jon  have  not  now  an  opinion  as  to  his  guilt  or  innocence  ? 

A.  I  have  no  decided  opinion. 

Q.  You  have  not  said  anything  about  it  ? 

A.  I  am  not  aware  of  having  said  anything  in  regard  to  his  guilt  or  inno- 
cence. 

By  the  District  Attorney  : 

Q.  You  have  no  decided  opinion  upon  the  subject  at  all  ? 

A.  None,  as  to  his  guilt  or  innocence. 

Q.  Have  you  formed  any  opinion  in  regard  to  the  guilt  or  innocence  of  the 
other  conspirators  1 

Question  objected  to  by  counsel  for  defence. 

Mr.  PiERREPONT.  If  the  court  please,  we  wish  to  argue  that  objection,  if  it  is 
insisted  upon.  The  prisoner  is  inaicted  as  a  conspirator  with  others.  If  he  is 
not  guilty  with  others,  he  is  not  guilty  at  all. 

Mr.  Merrick.  It  would  be  exceedingly  difficult  to  get  a  jury  of  men  who 
had  not  formed  or  expressed  an  opinion  as  to  the  guilt  or  innocehce  of  those 
persons  who  are  charged  with  the  murder  of  the  late  President  of  the  United 
States,  and  of  the  guilt  or  innocence  of  the  other  parties  named  in  the  indict- 
ment as  conspirators  with  him  is  permitted  to  be  drawn  out.  I  apprehend  you 
could  not  get  a  jury  in  this  District,  and  scarcely  one  in  the  United  States.  I 
presume  there  is  scarcely  a  gentleman  in  the  United  States  who  has  not  formed 
and  expressed  an  opinion  that  Booth  shot  Lincoln.  I  apprehend  there  are  very 
few  who  have  not  formed  or  expressed  an  opinion  that  the  mother  of  the  pris- 
oner at  the  bar  suffered  death  without  competent  testimony  to  convict  her,  and 
eo  we  might  go  through  in  an  inquiry  in  relation  to  all  the  others.  To  allow 
this  question  would  entirely  prevent  the  empannelling  a  jury.  The  question 
for  this  jury  to  try,  is,  according  to  the  indictment,  whether  or  not  John  H. 
Sarratt  is  guilty  of  the  murder  of  Abraham  Lincoln.  The  indictment  charges 
that  this  deed  is  the  result  of  a  conspiracy  between  various  parties ;  that  the 
prisoner  at  the  b.-ir  was  one  of  the  conspirators,  and  that  he  committed  the 
murder.  The  parties  summoned  as  jurors  may  entertain  the  opinion  that  two, 
three,  four,  or  five  of  the  others  charged  in  the  indictment  as  conspirators,  did 
conspire,  and  at  the  same  time  may  not  have  formed  any  opinion  at  all  as  to 
whether  or  not  the  prisoner  at  the  bar  was  the  sixth  conspirator.  Or  the  party 
may  entertain  the  opinion  that  the  prisoner  at  the  bar  was  in  a  conspiracy  of 
gome  kind  or  other,  or  in  the  conspiracy  to  murder  the  President  of  the  United 
States,  and  may  have  formed  no  opinion  as  to  whether,  in  point  of  fact,  the 
prisoner  did  commit  the  murder.  I  therefore  submit  to  jour  honor  that  the 
inquiry  made  by  the  District  Attorney,  is  an  inquiry  relating  to  matters  beyond 
the  limit  of  investigation,  for  the  purpose  of  ascertaining  the  qualifications  of  a 
JMor. 

Mr.  PiBRRBPONT.  If  your  honor  please,  before  we  knew  in  what  mode  we 
\  i>hoii1d  have  to  meet  this  question  of  challenge,  the  question  received  the  consid- 
\  eration  of  my  learned  friend,  the  District  Attorney,  with  myself  and  his  associate. 
We  gave  it  a  very  careful  examination,  and  we  came  to  the  conclusion  founded, 
^e  believe,  upon  competent  authority,  that  this  was  a  proper  question  to  be 
uked  and  answered,  in  order  to  get  at  the  qualification  of  a  juror  in  a  case  of 

this  kind  under  such  an  indictment.     The  reason  urged  by  my  learned  friend 

^mst  it  is,  that  he  believes,  I  do  not  know  but  that,  he  asserts,  that  there  are 

'ery  few  in  the  United  States  who  do  not  believe  Mrs.  Surratt  was  illegally  ex- 
cited.   Therefore  we  could  not  get  a  jury  competent  to  try  the  prisoner  at  the 

W,  if  this  question  is  allowed  to  be  put. 


70  TRIAL  OF  JOHN  H.  SURRATT* 

Mr.  Merrick.  My  brother  will  allow  me  to  say  that  he  did  not  state  my 
entire  propopition.  I  said  there  were  few  intelligent  persons  in  the  United 
States  who  had  not  formed  an  opinion  upon  the  qnestion  of  Booth'fl  participa- 
tion in  the  killiDg*  of  Lincoln,  and  tl^ere  were  also,  I  presumed,  but  few  persons 
who  had  not  formed  an  opinion  that  Mrs.  Surratt  had  been  execated  upon 
insufficient  evidence. 

Mr.  PiERREPONT.  Precisely;  that  is  the  very  statement,  except  that  my 
friend  has  made  it  a  little  stronger  than  I  did.  I  did  not  intend  to  overstate  it, 
as  there  is  nothing  gained  by  over  statement,  but  it  seems  I  did  not  come  up  to. 
the  mark.  My  friend  urged  this  reason  on  the  question  of  law  about  the  adr 
missibility  or  propriety  of  the  question  propounded  to  the  juror,  as  to  whethe 
your  honor  should  exclude  the  question.  Now,  I  do  not  suppose  that  is  any 
reason  at  all  in  law,  or  that  your  honors  will  give  it  a  moment's  considera- 
tion. Both  sides  of  this  case  have  cei-tainly  acted  very  fairly.  I  have  no  com- 
plaint whatever  to  make  of  my  learned  friends.  They  have  acted  like  gentle- 
men, and  I  think  we  have  tried  to  act  honestly  on  both  sides  ;  that  we  have 
tried  to  get  an  honest  and  impartial  jury.  We  have  done  all  that  we  could,  and 
have  exhausted  our  power,  and  now  find  ourselves  thrown  back  upon  the  law. 
We  have  got  to  take  that,  and  we  intend  to  take  it.  Wherever  it  may  lead  us, 
however  long  it  may  take  us  to  get  at  it,  we  intend  to  pursue  it.  We  have  pre- 
pared ourselves  upon  this  very  question,  and  now,  if  your  honor  please,  if  you 
are  not  entirely  familiar  with  the  indictment,  it  will  be  necessary  for  us  to  bring 
it  into  court.  The  indictment  charges  the  prisoner  at  the  bar  with  having  en- 
tered into  a  conspiracy  with  other  parties — Mrs.  Surratt,  Booth,  Herold,  Payne, 
&c. — mentioned  by  name.  Now,  then,  if  a  juror  comes  here  and  says  he  does 
not  believe  these  other  conspirators  were  guilty,  there  could  not,  by  any  possi- 
bility, be  any  guilt  upon  the  part  of  this  party,  because  he  is  only  charged  as  a 
conspirator  with  other  persons,  and  if  a  juror  has  made  up  his  mind  in  such  a 
way  as  that,  the  evidence  will  not  change  it ;  that  the  other  parties  charged  as 
conspirators  in  this  indictment  with  the  prisoner  were  innocent,  then  he  is  not 
in  a  frame  of  mind  such  as  will  qualify  him  to  act  as  a  juror,  because,  having 
expressed  that  opinion,  it  is  utterly  impossible  for  him  to  find  the  prisoner  guilty. 

The  District  Attorney.  In  addition  to  the  point  which  has  been  suggested 
by  my  learned  colleague,  that  this  question  is  entirely  relevant  to  the  indict- 
ment which  char<;es  the  prisoner  at  the  bar  with  being  engaged  in  a  conspiracy 
with  others  named,  I  will  suggest,  that  if  a  juror  has  expressed  an  opinion  in  re- 
gard to  any  of  the  parties  named  as  conspirators  in  the  perpetration  of  the  crime 
alleged  in  the  indictment,  he  has  expressed  an  opinion  on  a  part  of  the  case,  and 
I  may  add,  in  regard  to  a  material  part  of  the  case — I  think  it  may  so  affect  the 
mina  of  the  juror  that  he  will  not  be  prepared  to  form  an  impartial  judgment, 
and  he  is  therefore  an  incompetent  juror  upon  that  ground.  Aloreover, not  only 
does  this  indictment  charge  that  the  prisoner  co-operated  with  others  in  the  per- 
perpetration  of  the  offence  named,  but  it  distinctly  alleges,  with  others  to  the 
jurors  unknown.  Surely,  then,  if  the  juror  has  expressed  an  opinion  in  regard 
to  the  guilt  or  innocence  of  the  one,  does  he  not  by  implication,  however  he  may 
not  in  80  many  words  mention  the  name  of  the  prisoner,  express  some  opinion  in 
regard  to  his  guilt  or  innocence.  In  regard  to  the  character  of  the  offence  charged 
against  him  in  the  indictment,  if  the  juror  says,  "although  1  may  believe  (by 
way  of  illustration)  that  the  prisoner  did  commit  a  certain  crime,  my  opinion  is 
that  he  is  not  guilty  as  indicted,''  is  he  a  competent  juror  ?  If  the  party  is  not 
guilty  as  indicted,  however  great  the  crime  he  may  have  committed,  he  is  not 
guilty,  and  under  the  law  cannot  be  punished.  The  statement  of  this  juror 
is,  that  he  has  formed  and  expressed  an  opinion  which  goes  to  the  guilt  or 
innocence  of  (he  accused  as  indicted.  I  shall  have  something  to  say  of  this 
hereafter,  but  I  submit  that  such  a  statement  disqualifies  a  juror.  Again, 
if  your  honor  please,  you  observe  by   the  act  of  Congress,  March  3,  1865, 


TRIAL  OP  JOHN   H.   8UBRATT.  71 

)  3  Stat,  at  Large,  p.  500,  section  2,  the  government  of  the  United  States  is 
allowed  €ve  peremptory  challenges,  and  the  accused  twenty.  It  provides 
that  in  addition  to  the  challenges  of  the  array,  or  panel,  individual  jurors 
for  eatise  or  favor  shall  he  tried  by  the  court  without  the  aid  of  triers.  Your 
honor,  then,  without  the  aid  of  triers,  shall  determine  whether  there  id  good 
cause  for  challenging  the  jurors.  If  your  honor  please,  the  question  of  fact 
which  was  submitted  to  the  decision  of  the  trier  is  transferred  by  express  legis^ 
lation  to  the  court ;  and  was  it  ever  heard  that  counsel  are  precluded  from 
uking  any  question  which  may  be  calculated  to  elicit  the  fact,  or  tending  to 
instruct  the  mind  of  the  court  in  regard  to  the  subject-matter  of  inquiry  ?  Yon 
are  the  trier  as  to  whether  this  is  an  impartial  juror.  I  submit  that  you  cannot 
do  otherwise  than  to  allow  the  counsel  on  both  sides  to  ask  any  question  tend- 
ing to  elicit  the  state  of  mind  in  which  that  person  is  in  regard  to  the  issue  which 
would  be  submitted  to  him  if  sworn  as  a  juror.  Now,  is  not  the  guilt  or  inno- 
cence of  the  co-conspirators  a  material  fact  1  Is  it  not  relevant  ?  And  if  so, 
however  remotely  relevant  the  question  submitted  to  your  honor,  we  have  the 
right  to  elucidate  the  facts  upon  careful  examination.  The  examination  in  chief 
has  been  conducted  by  your  honor ;  your  honor  has  submitted  certain  questions 
to  this  juror,  and  his  answers  may  satisfy  your  honor's  mind  that  he  is  a  compe- 
tent or  incompetent  juror;  your  honor  is  the  tribunal  before  which  that  question 
of  fact  is  to  be  tried ;  you  are  the  judge  and  jury  both  ;  but  you  will  allow  us  to 
pursue  oar  cross-examination  as  we  think  best,  being  only  restrained  by  matters 
which  are  relevant  If  I  should  ask  this  juror  an  entirely  irrelevant  question,  hav- 
ing no  connection  with  the  case,  you  would  properly  close  the  door  upon  me ;  but 
will  your  honor  say  that  the  co-conspirators  with  whom  this  prisoner  is  alleged 
in  the  indictment  to  have  co-operated  are  not  connected  with  the  very  matter  we 
now  propose  to  investigate  1  Surely  not.  And  therefore  we  have  the  right  to 
ask  these  questions ;  and  for  what  purpose  ?  It  would  be  a  brutumfulmen  for 
this  act  of  Congress  to  make  a  court  a  trier  if  we  are  not  permitted  to  ask  ques- 
tions tending  to  develope  good  cause  of  challenge  in  cases  where  good  cause  of 
challenge  may  be  shown  upon  a  cross-examination.  My  object  is  merely  to 
enable  your  honor,  by  cross-examination,  to  determine  whether  this  juror  is 
qualified  or  not.  I  concur  with  the  learned  counsel  who  spoke  in  behalf  of  the 
prisoner,  that  it  would  be  exceedingly  difficult  to  empanel  a  jury  if  the  principle 
enunciated  by  your  honor  is  correct.  Your  honor,  I  am  sure,  would  not  charge 
me  with  presumption  for  asking  to  be  heard  with  reference  to  the  question  of 
such  great  importance  before  making  your  final  decision ;  but,  sir,  I  do  must 
respectfully  submit  that  the  mere  forming  and  expressing  an  opinion  by  a  juror 
does  not  necessarily  disqualify  him. 

Mr.  Bradlby.  That,  however,  is  not  the  question  under  discussion  now. 

The  District  Attorney.  I  know  that  is  not  the  question,  but  I  referred  to 
it  incidentally.  We  surely  have  a  right  to  ask  a  juror  a  question  which  will 
bring  before  the  mind  of  the  court,  either  directly  or  indirectly,  whether  or  not 
this  juror  has,  in  point  of  fact,  formed  and  expressed  an  opinion.  My  desire  is 
to  enlighten  the  judgment  of  the  court  in  reference  to  this  matter. 

Mr.  Bradlby.  I  do  not  exactly  understand,  from  the  argument  of  the  coun- 
sel on  the  other  side,  what  it  is  that  we  are  going  to  try.  I  had  read  the  indict- 
ment with  some  care,  and,  until  what  has  fallen  from  my  learned  brothers  on  the 
other  side  to-day,  I  supposed  I  understood  for  what  offence  we  are  to  be  put  on 
trial ;  but  after  what  has  been  said,  I  am  ignorant,  as  my  client  is,  for  what 
offence  be  is  to  be  tried.  But  I  will  assume  that  their  understanding  of  the 
indictment  is  just,  and  that  he  is  on  trial  for  conspiracy,  and  that  he  is  on  trial 
for  murder.  On  the  question  of  his  guilt  or  innocence  of  either  of  these  a  juror 
has  been  interrogated ;  and  he  has  formed  no  opinion  whether  he  is  guilty  of 
murder,  and  he  has  formed  no  opinion  as  to  whether  he  is  guilty  of  conspiracy, 


72  TRIAL   OF  JOHN   H.   SUBRATT. 

He  has  answered  tLese  questions  distinctly ;  but  now  be  is  asked  wbetber  be 
bas  formed  an  opinion  as  to  wbetber  otber  people  were  engaged  in  it  or  not! 
Are  we  to  be  tried  for  tbat  1  Is  that  a  matter  on  wbicb  we  must  know  whether 
a  juror  has  formed  an  opinion  ?  Suppose  he  believes  that  other  people  are  guilty, 
or  that  other  people  are  innocent ;  can  they  throw  him  out  for  that  reason  ? 
Certainly  not ;  and  they  cannot  ask  him  the  question.  They  can  only  ask  him 
whether  he  has  formed  and  expressed  an  opinion  as  to  the  guilt  or  innocence  of 
the  accused.  The  juror  bas  answered  tbat  question  distinctly  in  the  negative; 
and  now,  can  you  ask  him  the  question  whether  he  has  formed  or  expressed  an 
opinion  as  to  the  guilt  or  innocence  of  anybody  else  ? 

Mr.  PiRRREPONT.  I  suppose  we  can  when  he  is  charged  with  them. 

Mr.  Bradley.  The  question  is  whether  he  was  connected  with  them,  not 
whether  they  were  guilty.  The  juror  bas  answered  that  be  bas  formed  no 
opinion  as  to  whether  be  was  connected  with  them,  and  that  is  the  only  question 
that  can  be  put. 

I  am  enlightened  again,  in  another  point  of  view,  by  this  statute  to  which 
reference  has  been  made.  My  learned  brethren  know  perfectly  well  tbat  before 
tbat  statute,  under  the  common  law,  the  court  was  the  trier  of  the  fact  as  well 
as  the  adjudicator  of  the  law.  It  was  only  when  triers  were  demanded  that  the 
question  of  fact  was  turned  over  to  triers  for  decision.  Until  they  were  demanded 
the  judge  passed  upon  both  the  law  and  the  facts;  and  the  only  effect  of  the 
statute  was  to  so  modify  the  law  as  not  to  permit  the  question  of  fact  to  be 
referred  to  triers. 

The  Court.  I  suppose  the  intention  of  the  law  was  to  get  rid  of  triers  when 
challenge  was  made  for  favor. 

Mr.  Bradley.  Certainly,  for  favor  or  for  cause.  The  party  had  the  right  to 
demand  triers,  but  the  court  would  decide  unless  they  were  demanded.  Is  there 
any  change  in  the  mode  of  conducting  the  investigation  ?  Did  any  human  be- 
ing ever  hear  before  when  a  man  is  called  as  a  juror  and  the  proper  question  u 
put  to  him  by  the  court,  that  the  counsel  on  either  side  may  cross-examine  himf 
1  confess  that  I  never  heard  of  the  practice  before. 

Mr.  PiRRRBPOiNT.  I  never  heard  the  contrary,  and  I  have  known  of  50 
cases  at  the  New  York  bar. 

Mr.  Bradley.  Then  I  thank  fortune  I  do  not  belong  to  the  New  York  bar. 
I  have  heard  your  honor  upon  the  bench  say  time  and  again,  **  This  bas  gone 
far  enough.  I  think  we  can  risk  him."  You  have  always  stopped  an  exami- 
nation of  a  juror  just  as  soon  as  it  bas  proceeded  to  the  point  of  ascertaining 
whether  he  has  formed  or  expressed  an  opinion  as  to  the  guilt  or  innocence  of 
the  prisoner.  But  that  a  juror  may  be  put  upon  bis  cross-examination  as  to 
whether  he  is  eligible  or  not,  I  never  heard  before. 

The  question  that  it  is  now  proposed  to  ask  is  unnatural  and  irrelevant.  It 
is  unnatural  and  irrelevant  whether  a  man  has  expressed  or  formed  an  opinion 
as  to  the  guilt  of  other  parties  charged  with  the  murder  of  the  President.  I  do 
not  think  the  question  is  admissible  in  any  point  of  view,  because,  when  you 
come  to  examine  the  indictment,  there  is  no  such  question  to  be  tried  by  a  jury. 
It  is  inadmissible  because  the  charge  to  be  tried  by  this  jury  is,  wbetber  the 
accused  is  guilty  of  the  murder  of  the  President.  When  your  honor  comes  to 
examine  the  indictment,  with  great  respect  to  my  friends  on  the  other  side,  I 
submit  that  any  one  with  common  sense  who  reads  it,  will  say  that  the  charge 
is  murder  of  the  President,  and  tbat  the  matter  of  the  conspiracy  is  merely 
thrown  in. 

Mr.  PiERRBPONT.  The  whole  thing  is  conspiracy  to  murder,  and  in  a  con- 
spiracy to  murder  all  are  principals. 

Mr.  Bradley.  That  may  be  New  York  law,  but  it  is  not  law  here. 

Mr.  PiERREPoNT.  We  shall  desire  to  bring  in  the  law. 

The  Court.  I  shall  ask  gentlemen  to  bring  in  their  authorities  and  I  will 
then  decide  it. 


TBUL  OF  JOHN  H.  8URRATT.  73 

Mr.  Mrbbick.  I  alluded  the  other  day,  iDcideDtally,  to  the  fact  that  the  act 
of  1854  was  at  least  liable  to  the  constraction,  that  unless  the  panel  is  completed 
by  Saturday  night  the  new  term  will  have  commenced  and  this  case  could  not 
be  tried.  I  hope,  therefore,  the  court  will  not  adjourn  now,  but  will>go  on  until 
all  these  jurors  shall  have  been  examined. 

Mr.  Bbadlby.  The  new  term  commences  at  10  o'clock  Monday  morning,  and 
we  may  sit  until  that  time  if  we  please. 

Mr.  Mbbbick.  That  is  true,  but  Sunday  is  a  dies  nan  juridims. 

The  CouBT.  Gentlemen  may  bring  in  their  authorities  and  I  will  decide  this 
question  to-morrow  morning.  In  the  meantime  the  witness  may  stand  aside, 
tnd  the  examination  of  others  may  be  proceeded  with. 

Z.  D.  Oilman,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows  : 
By  the  Coubt  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A    I  have  formed  and  expressed  an  opinion. 

Q.  Tou  have  both  formed  and  expressed  an  opinion  ? 

A,  Yea,  sir. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  I  fear  it  might. 

Q.  Have  you  conscientious  scruples  against  finding  a  verdict  of  guilty  in  a 
case  where  the  punishment  is  death,  provided  the  evidence  be  such  as  to  satisfy 
jou  of  the  correctness  of  that  finding  ? 

A.  I  have. 

By  Mr.  Bbadlby  : 

Q.  Do  you  mean  to  say  that  you  could  not  find  a  verdict  of  guilty  in  a 
capital  case,  although  you  were  satisfied  the  evidence  warranted  it  ? 

A.  1  could  find  a  verdict  of  guilty,  I  suppose. 

By  the  Coubt  : 

Q.  That  is  the  case  I  put  to  you,  whether  you  have  cortscientious  scruples 
such  as  would  prevent  you  from  saying  a  man  was  guilty  of  a  capital  offence,  if 
the  evidence  justified  that  finding? 

A.  I  could  say  that. 

Q.  And  you  could  find  a  verdict  of  guilty  ? 

A.  Yes,  sir. 

The  Coubt.  You  may  stand  aside  for  the  present. 

Joseph  F.  Bbown,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows  : 
By  the  Coubt  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or 
innocence  of  the  prisoner  at  the  bar,  John  H.  Surratt  1 

A.  Yes,  sir ;  frequently. 

Q.  You  have  boih  formed  and  expressed  an  opinion  ? 

A.  Yes,  sir. 

C^.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
M  loroied  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
Verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  I  think  it  should  not,  but  I  would  be  afraid  to  trust  myself. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in  a 
ctae  punishable  with  death,  provided  the  evidence  justified  such  finding? 


74  TRIAL  OF  JOHN  H.  8URBATT. 

A.  None,  whatever. 

The  Court.  You  may  stand  aside  for  the  present. 

Zbnas  G,  Bobbins,  dulj  sworn  and  examined  upon  his  voire  dire,  as  follows: 

Bj  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or 
innocence  of  the  prisoner  at  the  bar,  John  B^  Surratt? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  Yes,  sir. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  No,  sir;  I  could  not  admit  that,  still  m  view  of  my  repeated  and  strong 
expressions  on  the  subject  of  the  guilt  of  the  prisoner  at  the  bar,  and  his 
associates,  I  think  it  would  be  unfair  to  the  prisoner  to  have  me  on  the  jury. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in 
a  case  punishable  with  death,  provided  the  evidence  justified  such  finding  I 

A.  Not  any. 

The  Court.  You  are  excused  from  further  attendance. 

Cornelius  Wendell,  duly  sworn  and  examined  upon  his  voire  dire,  as 
follows : 

By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or 
innocence  of  John  H.  Surratt,  the  prisoner  at  the  bar  ? 

A.  I  have  both  form  jd  and  expressed. 

Q.  Under  the  oath  }ou  have  taken,  do  you  say  that  the  opinion,  thus  formed 
and  expressed  by  you,  would  bias  or  prejudice  your  judgment  in  making  up  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  I  feel  sure  it  would. 

The  Court.  You  are  discharged  from  further  attendance. 

Joseph  Gbrhardt,  duly  sworn  and  examimed  upon  his  voire  dire,  as  follows : 
By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or 
innocence  of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  Yes,  sir. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prboner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  I  think  it  would. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  ia 
a  case  punishable  with  death,  provided  the  evidence  justified  such  finding? 

A.  I  have  not. 

The  Court.  You  are  discharged  from  further  attendance. 

Horatio  N.  Easby,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows: 

By  the  Court  : 
Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt? 


TBIAL  OF  JOHN  H.  8URRATT.  75 

A.  I  have,  sir. 

Q.  You  have  both  formed  and  expressed  an  opinion  t 

A.  Both  formed  and  expressed. 

Q.  Under  the  oath  jou  nave  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  Your  honor  will  permit  me  to  say,  that  ever  since  the  conspiracy,  which 
culminated  in  the  murder  of  Lincoln,  my  feelings  have  been  so  excited  against 
every  person  connected  with  that  conspiracy,  however  remotely,  that  I  think  it 
would  oe  perfectly  unfair  and  unjust  to  have  the  life  of  this  party  placed  in  my 
hands,  and.  therefore,  I  do  not  think  I  could  give  an  unbiased  opinion  in  this 
case. 

The  Court.  You  are  discharged  from  further  attendance. 

Thomas  Berry,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows: 
By  the  Court: 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  Yes,  sir. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case? 

A.  It  would  not. 

Q.  Have  you  conscientious  scruples  aeainst  bringing  in  a  verdict  of  guilty 
in  a  case  punishable  with  death,  provided  the  evidence  shall  satisfy  you  of  the 
propriety  of  such  finding? 

A    No,  sir. 

The  Court.  You  may  stand  aside. 

John  H.  Cranb,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows: 
By  the  Court: 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  Both  formed  and  expressed. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
aa  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  I  do  not  think  it  would.  I  should  feel  bound  to  bring  in  a  verdict  ac- 
cording to  the  law  and  the  evidence. 

Q.  Have  you  conscientious  scruples  against  bringing  in  a  verdict  of  guilty  in 
a  case  punit«hable  with  death,  provided  the  evidence  justified  such  finding? 

A.  I  will  state  to  your  honor  that  I  am  very  strongly  opposed  to  capital  pun- 
i^bment,  and  I  should  have  to  be  satisfied,  beyond  a  doubt,  of  the  guilt  of  a 
prisoner  before  1  could  bring  in  a  verdict  of  guilty.  If  there  was  a  shadow  of 
^oubt,  I  should  feel  bound  to  give  him  the  benefit  of  that  doubt.  I  would  not, 
Wever,  say  that  I  would  not  bring  in  a  verdict  according  to  the  evidence. 

The  Court.  You  may  stand  aside  for  the  present. 

William  M.  Shuster,  duly  sworn  and  examined  upon  his  voire  dire,  as  fol- 
lows: 


76  TRIAL   OF  JOHN  H    8URRATT. 

By  the  Court; 

Q.  Have  you  formed  or  expreseed  an  opinion  in  relation  to  the  gdlt  or  inno- 
cence of  the  prisoner  at  the  har,  John  H.  Sorratt? 

A.  I  have,  sir. 

Q.  Yon  have  both  formed  and  expressed  an  opinion  ? 

A.  I  have. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  If  I  were  obliged  to  sit  upon  a  jury  I  would  endeavor  to  render  a  verdict 
according  to  the  evidence,  but  at  the  same  time  I  feel  that  I  have  formed  and 
expressed  an  opinion,  and  that  I  would  go  into  the  jury-box  somewhat  preju- 
diced ;  that  I  would  have  something  to  overcome.  Having  entertained  a  very 
unfavorable  opinion  toward  the  prisoner,  I  would  not  like  to  go  into  the  jury- 
box  without  stating  that  fact. 

The  Court.  1  think  that  comes  right  to  the  case  decided  by  Chief  Justice 
Marshall,  that  a  witness  must  start  with  a  fair  chance  on  either  side.  You  are 
discharged  from  further  attendance  on  the  court. 

Henry  M.  Knight,  duly  sworn  and  examined  upon  hh  voire  dire,  as  fol- 
lows : 

By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence oi  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  1 

A.  Both  formed  and  expressed  an  opinion. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  I  believe  it  would. 

The  Court.  You  are  discharged  from  further  attendance. 

Robert  Ball,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows: 
By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have  probably  given  some  expression  of  an  impression  formed  upon  my 
mind  from  common  rumor,  but  I  do  not  think  I  have  given  any  decided  expres- 
sion of  opinion,  nor  have  I  formed  any  very  decided  opinion. 

Q.  From  what  you  have  seen  and  what  you  have  heard  in  regard  to  these 
rumors,  do  you  believe  you  would  be  able  to  render  a  fair  and  impartial  verdict, 
after  having  heard  all  the  testimony  in  the  case  ? 

A.  It  is  my  impression  I  could  do  justice  to  the  prisoner  as  well  as  to  the 
State. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in  a 
case  punishable  with  death,  where  the  evidence  would  justify  such  finding? 

A.  None,  whatever. 

The  Court  decided  Mr.  Ball  to  be  a  competent  juror,  and  no  challenge  bjing 
made,  he  was  accordingly  sworn  as  such. 

John  F.  Ellis,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows : 

By  the  Court: 
Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 


TBUL  OF  JOHN   H.   8URRATT.  77 

A.  I  ha\re,  sir. 

Q.  You  have  both  fonned  and  expressed  an  opinion  I 

A.  1  have. 

Q.  Under  the  oath  you  have  taken,  do  jon  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
Terdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  It  would. 

The  Court.  You  are  discharged  from  further  attendance. 

Samuel  Fowlbr.  duly  sworn  and  examined  upon  his  voire  dirCf  as  follows: 
By  the  Court: 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno* 
cence  of  the  prisoner  at  the  bar,  John  H.  Surratt  1 
A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 
A.  Yes,  sir ;  on  several  occasions. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case? 
A.  It  would. 

The  Court.  You  are  discharged  from  further  attendance. 
Tbrrbncb  Drury,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows: 

By  the  Court: 
Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 
A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 
A.  Both. 

Q.  Under  the  oath  you  have  taken,  do  you  state  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  tlie  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 
A.  I  am  satibfied  it  would. 
The  Court.  You  are  discharged  from  further  attendance. 

William  H.  Morrison,  duly  sworn  and  examined  upon  his  voire  dire,  as  fol- 
lows: 

By  the  Court: 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have. 

Q.  You  have  both  fonned  and  expressed  an  opinion  ? 

A.  Yes,  sir ;  very  decidedly. 

Q.  Under  tlie  oath  you  have  taken,  do  you  state  to  the  court  that  that  opinion, 
informed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering  a 
verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
^timony  in  the  case? 

A.  It  would. 

The  Court.  You  are  discharged  from  further  attendance. 

J.  RussBLL  Barr,  duly  sworn  and  examined  upon  his  voire  dire,  as  follows: 
By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence ef  John  H.  Surratt,  the  prisoner  at  the  bar  ? 
A  I  have  formed — I  am  not  certain  that  I  ever  expressed  an  opl' ' 


78  TRIAL   OF   JOHN   H.   SURRATT. 

Q.  Will  you  say  on  the  oath  you  liave  just  taken,  whether  that  opinion,  W) 
formed  by  you,  would  pn^judice  or  bias  your  judgment  in  arriving  at  a  fair  and 
impartial  conclusion  with  reference  to  the  guilt  or  innocence  of  the  prisooer  at 
the  bar,  after  hearing  all  the  evidence  in  the  case  ? 

A.  I  do  not  think  it  would? 

Q.  You  have  never  expressed  any  opinion  at  all  ? 

A.  Not  that  I  recollect ;  I  may  have  done  so. 

Q.  And  whatever  opinion  you  have  formed  is  not  a  decided  one  T 

A.  Not  a  decided  one. 

Q.  You  remain  open  to  conviction,  free  from  prejudice  and  bias  ? 

A.  I  think  so. 

Q.  Have  you  conscientious  scruples  against  rendering  a  verdict  of  guilty  in  a 
case  where  the  punishment  shall  be  death,  provided  the  evidence  shall  war- 
rant you  in  such  findiug  1 

A.  I  have  not. 

The  Court  decided  Mr.  Barr  to  be  competent  as  a  juror,  and  no  challenge 
being  made,  he  was  accordingly  sworn  in  as  such. 

Jbdmdiah  GiTTiNOS,  duly  sworn  and  examined  upon  his  voire  dire,  as  fol- 
lows : 

By  the  Court  : 

Q.  Have  you  formed  or  expressed  an  opinion  in  relation  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar,  John  H.  Surratt  ? 

A.  I  have. 

Q.  You  have  both  formed  and  expressed  an  opinion  ? 

A.  I  have. 

Q.  Under  the  oath  you  have  taken,  do  you  say  to  the  court  that  that  opinion, 
as  formed  and  expressed,  would  bias  or  prejudice  your  judgment  in  rendering 
a  verdict  as  to  the  guilt  or  innocence  of  the  prisoner,  after  having  heard  all  the 
testimony  in  the  case  ? 

A.  I  think  it  would. 

The  Court.  You  are  discharged  from  further  attendance. 

The  court  then  adjourned  until  to-morrow  at  10  o'clock  a.  m. 

JuNB  14,  1867. 

At  10  o'clock  Associate  Judge  Wylie  took  position  upon  the  bench,  and 
directed  the  crier  to  open  court. 

As  soon  as  the  court  had  been  opened,  he  said : 

Gbntlbmkn  :  I  regret  to  have  to  announce  to  you  this  morning  that  Judge 
Fisher  is  quite  sick,  and  unable  to  attend  court.  I  have  a  note  in  my  hand  to 
that  effect.  He  does  not  request  me  to  hold  court  for  him,  and  if  he  had,  I  have 
other  engagements  which  would  render  that  impossible.  I  am  at  present  hold- 
ing the  circuit  court  with  a  large  amount  of  business  before  me. 

Mr.  Pibrrepont.  What  disposition  can  be  made  of  all  these  jurymen  who 
have  been  subpoenaed  here  for  to-day  1 

The  Court.  I  will  hear  any  suggestions  you  have  to  make. 

Mr.  PiBRUEPOiNT.  I  do  not  know  what  we  can  do  exactly;  T  presume  we 
had  better  talk  lirst  among  ourselves.  I  have  no  doubt,  judging  from  what  has 
passed,  that  we  can  agree  upon  anything  amongst  ourselves,  so  far  as  agreement 
will  do  it. 

The  Court.  But  you  cannot  agree  to  try  the  case  without  a  ju^ge. 

Mr.  PiBRRBPONT.  I  would  like  to  know  what,  in  the  meantime,  is  to  be 
done  with  this  large  number  of  jurors.  The  order  was  for  summoning  100  for 
this  morning,  ani  they,  I  suppose,  are  here,  or  will  be.  Only  three  have  been 
empannelled. 

The  Court.  I  have  not  had  an  opportunity  of  examining  this  recent  act  of 
GongresB  upon  the  subject,  but  my  impression  is,  that  unless  the  jury  is  obtained 
to-dajy  the  case  will  have  to  be  continued  until  the  next  term  of  the  court. 


TKIAL   OP  JOHN   H.   SURBATT.  79 

Mr.  Merrick.  To-morrow,  your  honor,  or  until  Monday  moming,  as  Judge 
Fisher  intimated  yesterday. 

Mr.  PiERRKPONT.  Let  me  ask  if  it  is  not  in  the  power  of  your  honor  to  adjourn 
this  court  until  to-morrow  moming,  with  direction  to  these  same  jurymen  to 
appear  here  then,  for  if  the  sickness  of  Judge  Fisher  should  prove  to  be  but  tem- 
porary, which  1  hope  it  will,  we  might  then  succeed  in  getting  a  jury  this  week. 

The  Court.  I  will  add  that  1  have  also  a  note  from  Judge  Fisher,  stating 
that  in  consequence  of  representations  made  to  him,  he  is  satisfied  that  Mr.  Riggs, 
who  is  a  talesman,  summoned  in  this  case,  ought  to  be  excused  from  service  on 
the  jury.     He  is  therefore  excused. 

Mr.  Bradley.  If  your  honor  will  allow  me,  I  would  suggest  that  it  would 
perhaps  expedite  husiness,  if  those  persons  summoned  as  jurors,  and  desiring  to 
be  excused,  and  who  have  a  sufficient  and  valid  excuse  should  make  the  same 
now,  and  let  your  honor  decide  upon  it  at  once.  We  can  in  that  way  get  rid  of 
a  portion  of  this  number,  and  have  their  places  supplied  by  to-morrow  morning. 

Mr.  Pierrepont.  Yes,  sir;  I  think  it  would  be  very  well,  indeed,  if  your  honor 
can  afford  the  time,  to  proceed  to  excuse  such  as  shall  present  sufficient  excuses, 
who  are  physically  disqualified,  or  those  who  ought  to  be  excused  for  other 
reasons. 

The  Court.  Very  well ;  the  clerk  will  proceed  to  call  the  list 

Mr.  Bradley.  Mr.  George  £.  Jillai-d  tells  me  that  he  is  summoned  hefore  the 
grand  jury  for  Monday  moming,  and,  is,  therefore,  of  course,  discharged  from 
this  jury. 

The  Court.  Mr.  Jillard  is  excused.  The  clerk  will  proceed  to  call  the 
talesmen,  in  their  order,  and  gentlemen  will  he  kind  enough  to  signify  their 
presence  as  their  names  are  called. 

The  clerk  then  proceeded  to  read  as  follows : 

Thomas  Lewis,  no  response. 

Matthew  6.  Emory,  present. 

William  H.  Harrover,  present. 

Daniel  Breed,  present. 

Thomas  Young,  present. 

James  Kelley,  present. 

William  Orme,  present. 

John  McDermott,  no  response. 

William  Helmick,  present. 

Mr.  Helmick.  If  the  court  please,  I  ask  to  he  excused.  I  have  now,  and 
always  have  had,  conscientious  scruples  against  capital  punishment.  I  could 
not  sit  as  a  juror  and  do  myself  justice. 

The  Court.  I  do  not  pass  upon  questions  of  that  kind  now.  The  clerk  will 
proceed. 

George  T.  McGlue,  present. 

James  McGran,  present, 

Greorge  A.  Bohrer,  present. 

Douglas  Moore,  present. 

Christian  C.  Schnieder,  present. 

Upton  11.  Rodenour,  present. 

Isaac  W.  Ross,  present. 

George  J.  Senfferle,  present. 

Joseph  Crandall,  present. 

Thomas  £.  Lloyd,  present. 

Walter  W.  Burdett,  present. 

Frederick  Bates,  no  response. 

Moses  T.  Parker,  present. 

Nicholas  Acker,  present. 

John  T.  Mitchell,  present. 


80  TRIAL   OF  JOHN   H.   SUfiRATT. 

JeDkin  Thomas,  present. 

Benjamin  H.  Stinemetz.  « 

Thb  Court.  Mr.  Stinemetz  I  am  told  is  confined  to  his  bed  by  sickness.  I 
have  a  note  from  his  physician  to  that  effect.     He  is  therefore  excused. 

Joseph  L.  Pearson,  present. 

Mr.  Pbarson.  I  am  not  a  taxpayer. 

Mr.  Bradlby.  That  settles  it. 

The  Court.  Why  are  you  not  a  taxpayer?  Have  yon  been  overlooked 
merely  ? 

Mr.  PbarsGiV.  I  own  no  real  estate  in  this  city,  and  have  never  been  assessed, 
to  my  knowledge,  for  any  other  tax,  except  the  school  tax  which  I  have  paid 
on  voting. 

The  Court.  I  do  not  think  you  have  a  good  excuse. 

William  Bailantyne,  present. 

William  Flynn,  present. 

William  H.  Lane,  present 

Mr.  Lanb  approaching  the  court  as  if  desirous  of  addressing  him  privatelv. 

Mr.  Mbrrick  said:  I  will  simply  state  to  the  court  that  on  yesterday  we  had 
agreed  among  ourselves  that  the  court  should  hear  these  excuses,  and  act  as  it 
saw  proper;  and  that  was  suggested  from  the  fact  that  in  some  cases  the  excuses 
presented  by  the  jurors  might  involve  matters  of  delicacy,  which  it  might  not  be 
desirable  to  have  made  public,  and  that  such  should  therefore  be  addressed  solely 
to  the  court,  and  not  made  known  to  us,  unless  the  court  saw  proper  to  call  our 
attention  to  them. 

The  Court,  (after  a  brief  conversation  with  Mr.  Lane )  I  am  satisfied  Mr. 
Lane  has  a  just  excuse,  and  he  is  therefore  relieved  from  service. 

Patrick  Flemming,  present. 

Francis  Lamb,  present. 

The  Court.  Mr.  Germon  Crandell,  one  of  the  jurors  summoned  in  this  case, 
informs  me  that  his  wife  is  seriously  sick,  and  therefore  asks  to  be  excused.  He 
is  therefore  excused. 

William  Orme,  present. 

The  Court.  Dr.  Burrows  certifies  that  Mr.  Orme  is  laboring  under  such 
physical  disability  as  to  render  him  unfit  to  serve  as  as  a  juror.     He  is  excused. 

The  Court.  Francis  Lamb  hands  me  a  certificate  to  the  effect  that  his  wife 
is  very  seriously  ill.     He  is  excused. 

Thomas  Young,  whose  name  has  been  called,  I  have  known  for  many  years, 
and  have  known  him  to  be  an  invalid.  I  hold  in  my  hand  a  certificate  firom 
Dr.  Young  stating  that  he  is  unfit.     He  is  therefore  excused. 

William  H.  Tenney,  excused. 

The  Court.  Dr.  Breed,  whose  name  has  been  called,  says  that  he  has  been 
educated  a  quaker,  and  entertains  such  strong  scruples  that  he  could  not  serve 
as  a  juror.     That  is  not  the  class  of  questions,  however,  that  I  propose  to  act  on. 

Dr.  Brbbd.  I  have  still  another  reason,  perhaps  a  stronger  one;  I  have  formed 
a  very  decided  opinion. 

The  Court.  We  have  nothing  to  do  with  that  at  this  time. 

James  Y.  Davis,  present. 

George  F.  Gulick. 

Mr.  Gulick  stated  that  his  father-in-law  had  died  last  night,  and  of  course  he 
did  not  feel  like  being  detained  at  court  under  those  circumstances. 

The  Court.  We  will  not  pass  upon  your  case  now,  because  the  court  is  not 
going  to  be  in  session  to-day. 

John  Grinder,  present 

The  Court.  John  Grinder  has  furnished  the  court  with  a  certificate  that  his 
left  collar  bone  has  been  broken  by  being  thrown  from  a  carriage,  and  he  is 
therefore  unable  to  sit  as  a  juror.     He  is  excused. 


TRUL   OF   JOHN   H.   8URRATT.  81 

John  A.  Markriter,^pre8ent. 
Colambus  Alexander,  present. 
William  H.  Baldwin,  present. 
John  W.  Simms,  present. 
John  T.  Given,  present. 
Paulus  Thyson,  present. 
William  B.  Williams,  present. 

The  Court.  Jenkin  Thomas  informs  the  court  that  he  is  subject  to  attacks 
of  inflammatory  rheumatism,  of  which  he  has  had  two  of  great  severity  within 
the  last  two  months,  and  that  he  is  liable  to  a  return  of  them  on  any  very  decided 
change  in  the  temperature  of  the  weather. 

The  District  Attobivby.  Almost  every  man  is  liable  to  a  disease  of  some 
kind,  and  I  respectfully  submit  to  your  honor  that  that  is  hardly  a  sufficient 
excuse. 
Mr.  Thomas.  I  am  suifering  now. 

The  Court.  I  do  not  think,  Mr.  Thomas,  that  your  case  is  such  a  one  as 
would  justify  me  in  excusing  you. 
Norman  B.  Smith,  no  response. 

The  Court.  Mr.  Paulus  Thyson  has  presented  me  with  an  excuse,  which  I 
think  is  a  sufficiently  good  one  to  justify  the  court  in  excusing  him.    It  is  rather 
of  a  private  nature.    He  is  excused. 
A.  B.  Stoughton,  present 
Peter  Hepburn,  present. 
James  S.  Topham,  present. 

The  Court.  I  am  informed  that  Mr.  Topham  has  a  little  child  at  the  point  of 
death.     He  is  therefore  excused. 
W^illiam  J.  Redstrake,  present. 
J.  J.  May. 

The  Marshal.  He  is  in  New  York. 
William  McLean,  present. 
Thomas  Maguire,  present. 
James  C.  Kennedy,  present. 

Mr.  Kennedy.  I  claim  exemption  on  the  ground  that  I  am  not  a  resident  of 
the  District.     I  pay  taxes  on  property  here,  but  I  vote  in  the  city  of  New  York, 
and  pay  my  personal  taxes  there.     I  claim  my  residence  in  that  city. 
The  Court.  Yon  are  excused. 
John  Wilson. 

Mr.  Wilson.  I  would  state,  your  honor,  that  when  I  am  away  fi'om  my  place 
of  business,  it  is  left  without  any  one  at  all  to  attend  to  it.  My  family  are  all 
well,  sir,  and,  notwithstanding,  I  am  in  a  very  delicate  state  of  health  myself, 
(laughter,  being  a  gentleman  weighing  about  210  pounds,)  I  conld  not  get  a 
certificate  from  my  physician.  I  have  no  excuse  to  render,  your  honor,  other 
iban  to  say  that  I  would  like  very  much  to  get  off  on  account  of  my  business 
engagements. 

The  Court.  Judging  from  yonr  appearance  the  court  will  give  you  exemp- 
tion when  you  bring  your  doctor's  certificate.    (Renewed  laughter.) 
William  H.  Barbour,  present. 
Creorge  L.  Sheriff,  present. 
Bamuel  Bacon. 

The  Court.  Mr.  Bacon  is  a  little  unwell,  and  he  is  not  certain  whether  he 
^ill  be  able  to  be  here  to-day  or  not.     He  is  willing  to  serve  if  he  feels  well 
enough. 
Perry  W.  Browning,  present. 

Mr.  Browning.  I  will  simply  state  that  I  am  reside  it  of  the  State  of  Mary- 
land, and  vote  there. 


82  TRIAL   OF   JOHN   H.   6URRATT. 

The  Court.  Mr.  Browniug  is  excused.     I  know  the  fact  which  he  atates. 

John  Alexander. 

The  Marshal.  He  \q  in  New  York. 

George  E.  Jillard,  excused. 

William  Bryau,  no  response. 

Amos  Hunt,  present. 

Lot  Flannery,  present. 

laaac  TV.  Koss,  present. 

The  calling  of  the  list  heing  completed,  the  conrt  said  Mr.  Kelly  holds  the 
office  of  watchman  in  the  Navy  Department,  and  is  therefore  exempt  by  law. 
Mr.  Stoughton  says  he  has  a  large  business  in  the  patent  line,  which  sitting  as 
a  juror  here  would  materially  interfere  ^ith.  The  court  does  not  feel  at  liberty, 
however,  to  excuse  him  on  that  ground. 

Mr.  Stoughton.  I  will  state  that  I  cannot  possibly  be  here. 

Mr.  PiERREPONT.  The  court  will  not  sit  to-day,  and  perhaps  not  to-morrow, 
and  you  may  not  be  required  at  all.    You  had  better  let  your  case  lie  over. 

The  Court.  Mr.  Douglass  Moore  is  excused  on  account  of  sickness. 

Have  you  any  propositions,  gentlemen,  to  make  in  regard  to  the  disposition 
of  this  case  to-day  ] 

Mr.  Braolby.  I  wish  to  suggest,  sir,  to  my  brethren  on  the  other  side,  that 
it  would,  perhaps,  be  well  to  have  the  court  direct  the  marshal  to  summon  as 
many  more  to-morrow  as  have  been  excused  to-day. 

The  Marshal.  I  will  explain,  if  the  court  please,  that  I  understood  the  order 
of  the  court  yesterday  to  be,  that  the  marshal  summon  100  additional  jurors. 
In  view,  however,  of  the  very  limited  time  which  we  had  in  which  to  execute 
the  order,  the  full  complement  was  not  made  out,  and  I  propose  now,  if  such 
meet  the  approval  of  the  court  and  the  counsel,  to  fill  up  such  vacancies  as  have 
occurred  by  gentlemen  being  excused,  and  summon  the  remaining  number  of  the 
100,  so  that  the  list  shall  be  complete  to-morrow  morning. 

The  Court.  The  marshal  will  complete  the  list,  so  that  we  may  have  100 
here  to-morrow  morning. 

Thereupon  the  court  adjourned  till  to-morrow  morning  at  10  o'clock. 

June  15,  1867. 

The  court  met  at  10  o'clock  a.  m.    Justice  Wylie  on  the  bench. 

The  Court.  I  will  announce  to  the  gentlemen  of  the  bar  engaged  in  this  case 
that  it  is  not  my  purpose  to  go  into  the  trial  of  it,  but  merely  to  preside  here  to- 
day for  the  selection  of  a  jury.  I  am  engaged  in  holding  the  circuit  court,  and  I 
suppose  that  one  of  my  brethren  will  be  here  in  time  to  go  on  with  the  trial  of 
this  cause  on  Monday.  I  have  adjourned  the  circuit  court  for  to-day  in  order 
that  the  jury  may  be  completed  in  this  case,  and  all  parties  thereby  saved  from 
the  expense,  labor,  and  vexation  of  going  over  again  all  that  has  been  done  from 
Monday  until  this  time. 

If  the  court  shall  adjourn  to-day  without  completing  the  work,  on  Monday 
there  being  a  new  term,  the  case  would  have  to  be  continued.  For  that  purpose 
then  alone  is  it  that  I  have  adjourned  my  own  court  to  come  here  and  assist  io 
the  conclusion  of  this  work  that  has  been  entered  upon  of  the  selection  of  a  jury. 
There  is  no  other  judge  who  can  attend  to  it,  and  Judge  Fisher  is  sick,  and  my 
other  two  brethren  are  absent. 

The  Court  excused  Mr.  Larmon,  it  being  shown  that  he  was  an  officer  of  the 
government,  employed  in  tlie  Treasury  Department,  as  master  machinist  iu  the 
Currency  Bureau. 

The  Clerk  was  directed  to  call  the  li.^st  of  talesmen,  which  he  preceded  to  do 
as  follows  : 

Thomas  Lewis,  no  response. 

John  McDermott. 


TRIAL   OP  JOHN  H.   8URRATT,  83 

The  Marshal.  He  has  not  been  served.    He  is  not  in  the  city. 

Norman  B.  Smith,  present. 

J.  J.  May,  no  response. 

John  Alexander,  present. 

The  Court.  I  think  it  would  be  better  for  those  who  intend  to  apply  for 
exemption  to  make  their  application  as  their  names  are  called. 

Mr.  Bradley.  That  has  been  done  heretofore. 

Mr.  Smith.  May  it  please  your  honor,  I  don't  think  lam  physically  able  for 
the  endurance  of  a  juryman.  Besides  that,  I  do  not  believe  I  am  competent, 
for  I  have  expressed  an  opinion  relative  to  this  case. 

By  the  Court  : 
Q.  When  did  you  express  that  opinion  ? 
A.  I  believe  I  have  done  it  repeatedly. 
Q.  When  ? 

A.  After  the  trial  of  the  conspirators — after  reading  the  testimony  in  that 
case. 

Q .  It  is  not  enough  to  have  expressed  an  opinion.     Have  you  formed  an  opinion, 
is  what  I  desire  to  know,  for  sometimes  ihen  express  opinions  that  they  do  not 
believe  in. 
A.  I  believe  I  had  formed  an  opinion  before  I  expressed  it. 
Q.  You  say  you  formed  your  opinion  from  reading  the  testimony  given  on 
the  trial  of  the  conspirators  ? 
A.  Yes,  sir. 

The  Court.  I  do  not  think  that  is  a  sufficient  excuse.  I  do  not  see  how  a 
man  can  form  an  opinion  in  regard  to  the  guilt  of  a  man  in  one  case,  by  reading 
the  evidence  in  another  case. 

Witness.  If  that  is  not  sufficient  ground  to  excuse  me  I  claim  it  on  the  other; 
1  am  certainly  not  physically  able  to  endure  the  fatigues  of  sitting  on  a  jury. 

The  Court.  I  do  not  believe  you  are.  You  seem  to  be  very  tremulous. 
You  are  excused. 

The  District  Attorney.  If  your  honor  please,  I  was  not  in  when  your 
honor  first  appeared  upon  the  bench,  but  peimit  me  to  say,  sir,  several  diffi- 
culties occur  to  us  upon  consultation,  in  the  way  of  proceeding  with  the  cause 
at  present.  I  do  not  know  whether  your  honor's  attention  has  been  called  to 
the  act  of  Congress,  which  was  read  to  Judge  Fisher,  providing  that  unless  a 
jary  is  empanelled  during  one  term  of  the  court,  we  cannot  continue  the  trial 
of  the  case  during  the  succeeding  term. 
The  Court.  1  understand  that. 

Mr.  Bradley.  Is  that  any  reason  why  you  should  not  get  a  panel. 
The  Court.  That  is  why  I  am  sitting  here  to-day  in  order  that  we  may  get 
a  jury  before  the  next  term  begins. 

The  District  Attorney.  Precisely,  but  it  occurred  to  us  that  it  would  be 
impossible  for  us  to  empanel  a  jury  to-day.     But  even  if  wo  should  succeed  in 
doing  so,  there  are  other  difficulties  which  suggeet  themaelvcs  to  our  minds,  and 
which  we  deem  it  our  duty  to  bring  to  the  attention  of  the  court.     The  term  of 
tbe  criminal  court  is  assigned  to  one  of  the  judges  of  the  supreme  court  of  the 
l^iatrict  of  Columbia,  and  during  the  term,  I  believe  a  rule  of  court  requires  that 
where  a  judge  takes  the  place  of  the  one  to  whom  the  term  has  been  assigned, 
it  should  be  upon  his  written  request.     1  think  that  is  the  rule  of  the  court  in 
such  a  case. 
The  Court.  How  do  you  know  but  what  I  have  that. 
The  District  Attorney.  I  am  not  aware  of  how  the  fact  is  in  this  par- 
ticular case.     I  merely  suggest  these  difficulties  because  we  wish  to  proceed  in 
tQch  a  way  that  there  can  be  no  objection  made  hereafter  to  the  mode  of  pro- 
ceding.     We  conceive  it  to  be  our  duty  to  bring  to  the  mind  of  the  Court  such 
"  ies  as  may  occur  to  us,  and  which  your  honor  may  have  overlooked. 


84  TRIAL  OF  JOHN  H.   8UERATT, 

There  18  one  other  point,  if  your  honor  please,  that  I  desire  to  call  to  the  atten- 
tion of  the  court.  It  is  this,  whether  it  would  he  a  legal  proceeding  for  one 
judge  to  commence  the  trial  of  the  case,  to  decide  an  important  question,  such  as 
has  been  decided  during  the  progress  of  this  trial,  and  to  empanel  a  part  of  the 
jury ;  for  a  second  judge  to  complete  empanelling  of  the  jury,  and  then  for  a 
third  judge  to  try  the  case,  for  the  reporter  has  read  to  me  the  announcement  of 
your  honor  that  it  is  not  jour  purpose  to  tiy  this  case,  but  simply  to  go  on  and 
empannel  the  jury. 
The  Ci>iRT.  Yes,  that  is  all. 

The  District  Attorney.  If  your  honor  were  to  empannel  this  jury,  and 
then  proceed  to  try  the  case,  that  might  obviate  the  difficulty  to  a  certain  extent 
The  case  would  then  be  presented  of  one  judge  empanelling  a  part  of  the  jury, 
and  the  other  jodge  taking  his  place,  in  conformity  with  the  rule  of  the  court, 
and  completing  tne  empanelling  of  the  said  jniy,  and  presiding  during  the 
entire  trial ;  but  if  this  case  is  presented  with  Judge  Fisher  dedding  one  import- 
ant question  which  has  been  submitted  to  him,  empanelling  three  of  the  jurors, 
and  your  honor  empanelling  the  nine  other  jurors,  and  then  of  the  case 
going  to  the  next  term,  and  the  chief  Justice  trying  It,  I  doubt  whether  that 
would  be  a  legal  proceeding.  At  all  events  it  is  a  question  of  such  grave  im- 
portance  

Mr.  Pikkrepont,  Three  judges  will  then  have  been  oigaged  in  the  trial  of 
one  case 

The  District  Attorney.  I  say,  sir.  the  question  is  one  of  such  grave  im- 
portance that  we  have  felt  it  our  duty  to  bring  it  to  the  attention  of  the  court, 
and  to  submit  some  observations  upon  it. 

The  Coirt.  It  is  not  worth  while  to  waste  any  time  upon  points  of  that  sort. 
Jam  not  disposed  to  listen  to  argument  upon  such.  The  law  knows  neither 
Judge  Olin,  Judge  Fisher,  nor  «ludge  Wylie,  but  looks  to  the  *'jiistiee  of  the 
criminal  courts*  *  and  it  makes  no  difference  if  all  four  <^  ns  are  oonoemed  on  the 
trial  at  diflR^rent  f  tJige?  of  the  case, 

Mr.  PiKRRKM^XT.  We  feel  it  to  be  our  duty  to  present  to  your  bonor  the 
view  we  ent«^nain,  that  under  your  law,  three  judges  cannot  sit  in  die  trial  of 
one  cause,  and  have  it  legal. 

The  OovRT,  There  are  ih>i  three  indges  sitting — only  one- 
Mr  PiRRREroNT.  As  I  Understand  it«  the  empanelling  of  a  jmy  is  as  much 
the  trial  of  a  cause  as  the  hearing  of  the  testimony. 

Mr.  l^RAPLEY.  Are  we  t4>  undoi^tand  the  learned  comutel  as  boldiog,  that  if 
the  judpi-  be  t^kt  n  sick  ai'^^-r  ho  shall  have  entered  upon  the  trial  of  a  cause,  aiid 
be  unablo  ti^  atton^l.  that  aiiMher  jur.pe  cannot  take  his  place. 

Mr,  PiKRRErovT,  1  c*^nA:nly  suppose  be  cannot  ii;  a  murder  triaL 
Mr.  Brai^i.fv.  He  <vrtairjly  can. 

Mr.  PiKRRFiVAT.  N..t  wbm  the  cJi5e  mn?  into  aaoxber  uhml. 
The  vV V  R T.  K  iN^uce  y  v^::r  p^-^int  t ■>  wtt: :r»£r.    The  cc»trt  oTermle*  the  objection, 
a»d,  prAups,  it  would  be  will  f.-^r  yova  ;,^  Lire  yi*nr  pcait  ful]y  preseaied  on  the 
reowa. 

Th*^^  District  Atti^rxfv.  I  am  t^.m  aware  that  I  w^old  accomplish  anything, 
by  Ttshicini:  ^t  T*^  ^T:t:Ti^,  K-caiif^  I  w^r.l.i  h^ire  i>o  appeal  At  kta^t  that  is  « 
ttiWT>r^  qiiesti^Mk  wii«tK-r  in  c-rmrna]  ra^**s  Tbe  ^r-^xymiafflii  has  aay  appeal. 

The  OovRT,  I  Ivai^  orfrrdciS  tlK  or;vv*:>vTi.  Tb^-re  is  no  ix5*e,  ibcix^bre, dis- 
'CiK5siti(r  the  matsier. 

Mr.  I'^RRfifrv^VT.  Jn  a  lv>w  tone  T*>  ibe  disrrjrt  aa««eT,>  We  cannot  go 
An. 

IV  Ci  .1  RT.  Pr.wea  TO  call  :ljf  ;urr.  Mr,  Clfsk, 

T4ie  ckirk  :>4ris  r.cnacejcei  cjii.l;:.^  *  rix  :lji  lis;  lis  ihc  f.^owing  order: 


TRIAL  OF  JOHN  H.   6UHBATT.  85 

Thomas  Lewie,  no  response. 

Matthew  G.  Emory,  present. 

The  Court.  I  have  a  certificate  from  Mr.  Emory's  family  physician,  stating 
that  his  wife  is  quite  sick,  and  requires  to  be  removed  to  different  air,  and  that 
Mr.  Emory  himself  is  rather  indisposed,  (laughter  )  The  act  of  Congress  makes 
that  a  good  excuse.    He  is  therefore  excused. 

William  Harrovbr  was  next  called,  and  after  being  duly  sworn — examined 
on  his  voire  dire,  as  follows  : 
By  the  Court  : 

Q.  Have  you  any  reason  why  you  should  not  serve  upon  this  jury  ? 

A.  No,  sir;  but  I  would  rather  not.     I  do  not  like  to  serve  on  such  cases. 

The  Court.  Gentlemen  have  you  any  questions  to  put  to  him. 

Mr.  Bradley.  I  thought  your  honor  intended  putting  the  question  to  him  as 
to  whether  he  had  form^  and  expressed  an  opinion. 

By  the  Court.  Have  you  formed  an  opinion  in  this  case  ? 

A.  I  cannot  say  that  I  have.  It  is  impossible  to  tell.  We  have  our  opinions 
about  these  things. 

Q.  Have  you  any  conscientious  convictions  as  to  the  lawfulness  of  capital 
punishment  ? 

A.  I  do  not  know. 

Mr.  Bradley.  He  has  served  upon  capital  cases.  It  is  hardly  worth  while 
to  ask  him  that  question. 

The  Court.  Mr.  Harrover  is  a  competent  juror. 

Mr.  Harrover.  I  have  a  certificate  here. 

The  Court.  Let  me  see  it.  I  thought  you  were  through.  (After  reading 
the  pajper.)  Here  is  a  very  strong  medical  certificate  to  the  effect  that  Mr. 
Harrover  is  whollyphysically  incapacitated  from  sitting  on  a  jury. 

Mr.  Mbrrigk.  Who  is  the  physician  7 

The  Court.  Dr.  Toner. 

Mr.  Harrover.  My  neighbors  can  certify  to  the  same. 

Mr.  Bradley.  Dr.  Toner  is  a  man  of  character. 

Mr.  Harrover.  I  tried  to  get  it  in  yesterday,  but  did  not  succeed. 

The  Court.  If  the  facts  stated  in  this  certificate  be  true,  he  is  physically 
incompetent. 

The  juror  was  excused. 

Daniel  Breed  was  called,  and  examined  upon  his  voire  dire. 
By  the  Court  : 

Q.  Are  you  physically  able  to  sit  on  a  jury  ] 

A.  I  think  I  am,  thougli  I  am  not  very  well  now,  and  was  recently  quite 
indisposed. 

Q.  Have  you  formed  an  opinion  in  this  case  ? 

A.  I  have. 

Q.  When  did  you  form  it  ? 

A.  From  the^first  history  of  the  murder  of  Lincoln.  I  have  watched  every- 
thing I  have  seen  in  the  papers,  and  little  by  little  have  come  to  the  conclusion 
and  expressed  an  opinion  long  ago,  in  regard  to  the  prisoner. 

Q.  In  regard  to  this  prisoner  ] 

Q.  Yes,  sir. 

Tlie  Court.  You  are  incompetent,  and  are  excused. 

John  R.  Elvaxs  called,  and  after  being  sworn  was  examined  upon  his  voire 
^ircj  as  follows : 

By  the  Court  : 
Q.  Have  you  formed  an  opinion  in  this  case  ? 
A.  I  have. 


86  TBIAL  OF  JOHN   H.   8CBRATT. 

Q.  "When  did  you  form  that  opinion  ? 

A.  Probably  fi  om  the  time  of  the  trial  of  the  conspiraton  by  the  militiiry  com- 
mission at  the  arsenal.  It  has  been  foimded  on  the  newspaper  reports  of  that 
trial  of  course. 

Q.  Do  you  think  that  opinion  is  such  as  to  sway  or  bias  your  mind  so  as  to 
effect  your  judgment  upon  the  evidence  and  the  law  a^  given  to  you  by  the 
court  and  witnesses  ? 

A.  So  far  as  I  can  analyze  my  own  mind,  I  do  not  think  it  would  have  any 
effect  on  my  judgment  in  the  rendition  of  a  verdict.  I  believe  I  could  render 
a  verdict  in  accordance  with  the  evidence,  notwithstanding  the  fiict  that  I  may 
have  formed  an  opinion  firom  reading  the  newspapers. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment  I 

A.  None,  sir.  « 

The  Court.  I  think  he  is  a  competent  juryman.  Have  you  any  questions 
to  ask,  gentlemen  ? 

The  District  Attorney.  If  you  honor  please,  having  upon  consaltation 
entertained  some  doubt  as  to  the  legality  of  the  present  mode  of  proceeding,  we 
have  thought  it  best  to  reduce  our  proposition  to  writing,  in  order  that  hereafter 
we  may  take  some  advantage  of  it,  if  necessary,  and  then  have  the  matter  more 
materially  considered,  either  by  the  judge  who  does  preside,  or  by  the  court  in 
heme, 

I  will  now,  with  the  permission  of  your  honor,  proceed  to  read  the  paper. 
It  was  then  read,  as  follows : 

'June  15,  1867. 
'*  The  district  attorney,  on  the  part  of  the  United  States,  objects  to  any  pro- 
ceeding to  empannel  a  jury,  on  the  ground  that  this  term  ends  on  Monday  next, 
June  17,  1867;  that  the  judge,  to  wit.  Judge  Fisher,  assigned  to  hold  the 
present  term,  is  sick,  and  not  present ;  that  he  was  present  on  Thursday  last ;  that 
another  judge,  to  wit,  Judge  Gartter,  is  assigned  to  the  next  term  of  this  crimi- 
nal court,  and  that  as  the  commencement  of  the  empannelling  of  the  jury  was 
by  Judge  Fisher,  it  is  submitted  by  the  district  attorney  to  be  illegal  to  proceed 
before  Judge  Wylie,  to  complete  the  empannelling  of  the  jury  in  this  case. 

"EDWARD  M.  CARRINGTON, 

"  U.  S.  Attorney  far  District  of  Columbia" 

The  Court.  The  objection  is  overruled.     You  except  of  course. 

The  District  Attorney.  Yes,  sir.     We  desire  to  have  the  paper  filed. 

Mr.  Bradley.  (To  the  district  attorney.)  Do  you  challenge  Mr.  Elvans  ) 

The  District  Attorney.  No,  sir. 

Mr.  Bradley.  We  do. 

Thomas  Blag  den  was  called,  and  after  being  duly  sworn  was  examined 
upon  his  eoire  dire. 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  this  case  ? 

A.  I  have.     I  have  formed  an  opinion,  and  expressed  it  the  other  day  ? 

Q.  When  did  you  form  that  opinion. 

A.  During  the  progress  of  the  trial  of  the  assapsins.  I  cannot  specify  exactly 
the  time.     1  read  attentively  all  the  evidence  that  was  given. 

Q.  You  formed  it  from  newspaper  reports  of  the  evidence  of  that  trial  1 

A.  Yes,  sir. 

Q.  Do  you  suppose  that  your  bias  is  so  strong  in  consequence  of  that  opin- 
ion that  you  could  not  do  justice  to  the  pri^jouer,  or  to  the  United  States? 

A.  I  do. 

The  Court.  You  are  excused. 


TRIAL   OF  JOHN    H.   8URRATT,  87 

Riley  A.  Shixn  was  called,  and  after  being  dulj  sworn  was  examined  on 
his  voire  dire,  as  follows  : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion? 

Mr.  Shi  NX.  Your  honor,  I  wish  to  state  that  I  suffer  a  groat  deal  with  a  dis- 
ease, which  I  have  had  for  years,  and  which  would  be  rendered  much  worse  by 
Bitting  as  long  as  I  would  have  to,  were  I  required  to  serve  on  this  jury.  I 
mentioned  the  fact  to  Judge  Fisher  the  other  day,  and  would  have  come  prepared 
with  a  certificate  from  my  physician,  had  I  supposed  there  would  be  a  sest*ion 
of  the  court  to-day.  If  the  case  were  expectea  to  occupy  only  a  few  days,  I 
would  have  no  objection  at  all;  but  it  would  be  impossible  for  me  to  sit  on  a 
protracted  case  like  this  promises  to  be.  Some  time  ago,  while  serving  on  the 
grand  jury,  I  was  compelled  to  get  a  leave  of  absence  from  Judge  Fisher  for 
some  fifteen  days,  in  consequence  of  this  complaint. 

Q.  Is  it  a  chronic  complaint? 

A.  Yes,  sir. 

Q.  Did  it  disable  you  at  that  time  ? 

A.  Yes,  sir.  Sitting  any  length  of  time  has  the  effect  to  aggravate  the  disease, 
and  render  me  very  uncomfortable.  Walking  does  not  effect  me  at  all ;  but  it 
frequently  happens  that  I  am  not  able  to  ride  for  a  week  or  two.  Some  times 
I  am  unable  to  lie  in  my  bed,  and  have  to  sleep  in  a  reclining  chair. 

The  Court.  You  are  excused. 

Richard  M.  Hall  was  called,  but  not  responding,  his  name  was  passed. 

JoHX  Van  Rbswick  was  called,  and  after  being  duly  sworn  was  examined 
on  his  voire  dire,  as  follows  : 
By  the  Court  : 
Q.  Have  you  formed  an  opinion  in  this  case. 
A.  I  have  not,  nor  expressed  any  that  I  am  aware  of. 
Q.  Have  you  any  conscientious  convictions  as  to  the  lawfulness  of  capital 
punishment  ? 
A.  I  have  not. 

The  Court.  I  do  not  observe  any  physical  disability,  and  I  think  him,  there- 
fore a  competent  juror. 

The  District  Attorney.  We  asked  Mr.  Van  Keswick  a  question  the  other 
dav. 
The  Court.  Well. 

Mr.  PiERRBPONT.  The  case  stands  in  this  peculiar  position,  your  honor. 
This  same  juror  was  upon  the  stand  the  other  day,  and  a  cert^iin  question 
wa*  asked  him,  to  which  objection  being  made,  the  court  concluded  to  hold  the 
matter  over  and  let  the  juror  retire  for  the  time  being.  I  may  state,  in  this 
connection,  that  the  question  was  argued  at  great  length  by  counsel  on  both 
sides. 
The  Court.  What  was  the  question  ? 

Mr.  Pikrkepont.  Has  your  honor  read  the  indictment,  allow  me  to  ask,  in 
order  that  1  may  make  myself  intelligible. 
The  Court.  I  heard  it  read  ;  1  was  present  when  the  prisoner  was  arraigned. 
Mr.  PiBRRRPONT.  The  indictment,  as  your  honor  will  perceive,  in  the  third 
and  fourth  counts  charges  this  prisoner  with  being  engaged  in  a  conspiracy 
^ith  certain  other  persons  named ;  it  follows,  therefore,  that  if  the  other  persons 
^ilh  whom  he  is  charged  with  being  engaged  in  a  conspiracy,  were  themselves 
innocent  of  any  conspiracy,  why  of  course  this  party  is  innocent,  because  he 
cannot  conspire  alone.  The  question  which  had  been  put  to  the  witness,  and 
Hich  was  held  under  advisement  by  Judge  Fisher,  was  as  to  whether  we  could 
properly  ask  the  witness  whether  he  had  formed  and  expressed  an  opinion  re- 
garding the  guilt  or  innocence  of  the  other  conspirators  named  in  the  indictment. 


88  TRIAL   OF   JOHN   H.   SURRATT. 

Mr  Bradley.  And  the  principal  objection  to  which  was,  that  they  did  not 
ask  him  whether  he  had  formed  or  expressed  an  opinion  as  to  the  complicity  of 
the  prisoner  with  the  parties  charged  with  that  conspiracy,  or  stated  any 
opinion  as  to  his  connection  with  them  in  any  shape,  but  as  to  people  entirely 
outside  of  him. 

Mr.  PiERREPONT.  It  came  up  on  a  single  question;  the  whole  substance  of 
the  thing  was  debated,  and  of  course  the  determination  of  that  question  would 
determine  the  other  questions  which  were  to  be  asked  of  this  witness. 

The  Court.  I  remember  observing  something  about  this  question  being 
raised  in  the  published  reports. 

Mr.  PiERREPONT.  If  the  court  should  say  that  any  opinion  formed  in  relation 
to  the  guilt  or  innocence  of  the  co-conspirators  disqualified  the  juror,  why  then 
of  course  he  could  not  sit  any  more  than  if  he  had  expressed  it  in  relation  to 
the  accused  himself.  Under  these  two  counts  of  the  indictment,  if  the  other 
parties  were  not  conspirators,  why  then  this  man  was  not  a  conspirator,  for  no 
man  can  conspire  alone  ;  hence  I  say  it  being  a  material  averment  in  the  indict- 
ment that  he  is  guilty  as  a  co-conspirator,  it  becomas  in  our  judgment  a  matter 
of  very  great  importance  to  know  whether  this  juror  has  made  up  his  mind  in 
relation  to  the  innocence  of  the  other  conspirators  charged  with  this  crime ;  if 
so,  he  has  so  made  up  his  mind  on  the  subject  as  will  necessarily  acquit  the 
prisoner. 

Mr.  Bradley.  I  thought  the  gentlemen  had  determined  to  abandon  the  case. 

Mr  PiERREPONT.  We  are  determined  to  file  our  objection,  and  have  done  so. 

Mr.  Bradley.  We  do  not  propose,  sir,  to  discuss  any  of  these  questions  relat- 
ing to  the  qualifications  of  jurors,  but  simply  to  submit  them  for  your  houoi^s 
decision,  without  argument,  so  far  as  we  are  concerned. 

The  Court.  I  called  over  to  see  Judge  Fisher  last  night,  and  this  question 
was  mentioned  by  him.  We  boih  concurred  in  the  opinion  that  the  objection 
raised  to  the  competency  of  the  juror  was  not  a  valid  objection,  and  he  would 
have  so  ruled  had  he  been  able  to  have  come  into  court  this  morning. 

Mr.  PiERREPONT.  If  your  honor  please,  I  do  not  know  exactly  what  the  cus- 
tom here  is,  in  relation  to  the  trying  of  jurors  before  the  court,  in  place  of  trier:*, 
as  the  statute  provides.  The  learned  district  attorney  and  the  learned  counsel 
on  the  other  side,  seem  to  entertain  different  views  as  to  the  cus4;om.  I  will  only 
say,  sir,  that  by  the  statute  of  1862,  as  well  as  at  common  law,  these  were  proper 
questions  to  be  asked  of  the  juror,  in  order  to  discover  whether  he  was  competent 
on  various  grounds 

Mr.  Bradley.  Will  my  brother  permit  me  to  ask  him  what  question  there  is 
before  the  court  ? 

Mr.  PiERREPONT.  I  want  to  see  whether  I  will  be  permitted  to  ask  any  ques- 
tion:*. 

The  Court.  I  have  overruled  your  objection,  you  will  understand. 

Mr.  PiERREPONT.  Yes,  sir  ;  I  understand  that.  What  I  am  now  desirous  of 
ascertaining  is,  whether  other  questions  going  to  the  competency  of  the  juror, 
are  in  your  honor's  judgment,  proper  to  be  asked  of  the  jurors.  My  leanied 
friend  the  other  day  suggested  that  it  was  not  customary  to  examine,  or  to  cross- 
examine  a  juror.     I  do  not  see  how  we  are  otherwise  to  get  at  his  competency. 

The  Court.  This  juror  is  now  being  examined  by  the  court  on  his  voire  dire. 
If  counsel  ask  questions  it  is  only  by  permission  of  the  court.  The  court  will 
grant  you  that  permission,  if  you  have  any  other  questions,  reserving  to  itself, 
of  course,  the  right  to  decide  upon  the  competency  of  the  q  nestions  asked. 

Mr.  PiERREPONT.  Of  course.  I  see  the  statute  provides  certain  qualifications 
in  order  to  make  a  juror,  and  with  the  permission  of  your  honor,  I  will  now 
proceed  to  ask  him  with  regard  to  such. 

The  Court.  Very  well,  sir. 

Q.  You  are  a  citizen,  I  suppose  ? 

A.  Yes,  BUT. 


TRUL   OF  JOHN   H.   SURRATT.  89 

Q.  Bom  in  this  coantiy  ? 

A.  Yes,  sir ;  a  native  of  Washington. 

Q.  I  presume  you  pay  taxes  ? 

A.  Yes,  sir. 

Q.  ELave  you  heen  living  in  Washington  the  whole  time  since  the  assassina- 
tion? 

A-  O,  yes,  sir. 

Q.  llave  you  read  the  evidence  connected  with  the  trial  of  the  conspirators,  or 
much  of  it. 

A.  I  read  some  of  it,  perhaps  all,  I  am  not  sure. 

Q.  And  you  formed  no  opinion  as  to  the  guilt  of  the  prisoner  1 

A.  No,  sir ;  none  at  all. 

Q.  And  you  did  not  express  any  7 

A.  No,  sir. 

Q.  And  have  not  any  now  formed  in  your  mind,  one  way  or  the  other  ? 

A.  I  have  not. 

Mr.  PiBRREPONT.  I  will  now  put  to  you  a  question  which  I  do  not  wish  you 
to  answer  unless  the  court  shall  decide  it  competent.  I  presume  it  will  be  over- 
ruled, but  I  put  it  simply  for  the  purpose  of  preserving  the  point. 

Q.  Have  you  formed  and  expressed  an  opinion  touching  the  guilt  or  innocence 
of  those  who  are  charged  in  this  indictment  as  conspirators  with  the  accused. 

Mr.  Bradlbv.  Do  not  answer. 

The  Court.  I  have  just  overruled  that  question. 

Mr.  PiBRRBPONT.  I  80  Understood  your  nonor,  but  I  was  desirous  of  having 
the  point  spread  out  on  the  record. 

Mr.  Bradley.  It  was  on  the  record  before. 

Mr.  Merrick.  I  understand  that  every  thing  that  is  said  goes  upon  the  re- 
cord.    The  reporters,  I  believe,  take  down  every  thing  that  is  said  and  done. 

The  Court.  What  the  reporters  take  down  does  not  constitute  the  official 
record  of  the  court. 

Mr.  Mbrrick.  Not  the  record  usually  made  by  the  clerk  I  am  aware,  sir. 
By  Mr.  Pibrrbpont  : 

Q.  Do  you  know  what  thfi  charge  is  for  which  the  party  is  arrested  here  ? 

A.  I  think  I  have  understood  it. 

Q.  What  have  you  understood  it  to  be  ? 

A.  I  understand  that  he  is  indicted  for  murder ;  being  engaged  in  a  conspiracy 
with  other  parties  to  commit  murder. 

Q.  On  neither  you  have  formed  an  opinion  ? 

A.  On  neither. 

Challenged  by  the  district  attorney. 

Josbph  T.  Brown  was  called,  and  being  duly  sworn  was  examined  on  his 
voire  dire,  as  follows  : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  this  case  ? 

A.  I  have. 

Q.  When  did  you  form  this  opinion  1 

A.  About  the  time  of  the  trial  of  the  conspirators.  I  also  formed  that  opinion 
about  the  time  of  the  arrival  of  Mr.  Surratt,  I  believe,  having  then  re-read  the 
testimony  in  the  conspiracy  trial. 

Q.  Is  the  bias  which  you  have  received  from  reading  that  testimony  on  your 
mind  so  strong  as  would  interfere  with  your  impartial  discharee  of  your  duty  as 
&  juryman  upon  the  evidence  given  to  you  in  the  cause,  and  upon  the  Uw  as 
given  by  the  court  ? 

A.  I  think  it  would ;  at  least  I  would  be  afraid  to  trust  it. 

Excused. 


•90  TRIAL  OP  JOHN   H.   SUBRATT. 

Thomas  Brrry  was  called,  and  being  duly  sworn  was  examined  on  his  voire 
dire,  as  follows  : 

Bj  the  Court  : 

Q.  Have  you  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner  ? 

A.  I  have. 

Q.  How,  and  in  what  .way  did  you  form  this  opinion  ? 

A  From  reading  the  statement  of  his  arrest,  and  a  portion  of  the  proceedings 
on  the  trial  of  the  other  conspirators. 

Q.  Is  the  bias  on  your  mind  so  strong  as  to  prevent  you  doing  impartial  justice 
between  the  United  States  and  the  prisoner  ? 

A.  No,  sir. 

Q.  Do  you  think  you  could  decide  it  fairly  ? 

A.  Yes,  sir ;  according  to  the  law  and  the  evidence. 

Q.  Have  yon  any  conscientious  convictions  as  to  the  lawfulness  of  capital 
punishment. 

A.  No,  sir. 

The  Court.  Gentlemen,  he  is  a  competent  juror. 

Mr.  Bbrry.  Permit  me  to  say,  your  honor,  that  I  am  not  in  very  good  health, 
and  therefore  do  not  know  as  I  would  be  able  to  serve. 

The  Court.  Have  you  a  doctor's  certificate? 

Mr.  Bbrrv.  No,  sir. 

The  Court.  The  presumption  then  is  that  you  are  able  to  serve. 

Mr.  Berry  being  accepted  by  counsel  on  either  side  was  sworn  in  by  the 
clerk. 

John  H.  Crane  was  called,  and  being  duly  sworn  was  examined  on  his 
voire  dire,  as  follows : 
By  the  Court: 

Q.  Have  your  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner 
at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  did  you  form  this  opinion  ? 

A  I  formed  the  opinion  from  reading  the  report  of  the  assassination  trial  two 
years  ago,  and  from  circumstances  connected  with  the  case. 

Q.  Is  the  bias  on  your  mind  so  strong  as  to  disable  you  from  rendering  an  im- 
partial verdict  between  the  United  States  and  the  prisoner  ? 

A.  No,  sir. 

Q  Do  you  believe  you  could  decide  according  to  the  law  and  the  evidence  in 
the  case? 

A.  I  think  I  could. 

Q.  Have  you  any  conscientious  convictions  as  to  the  lawfulness  of  capital 
punishment  ? 

A.  I  am  opposed  to  capital  punishment. 

Q.  But  so  long  as  capital  punishment  is  lawful  by  the  laws  of  the  land,  would 
that  disapprobation  on  your  part  influence  you  in  rendering  a  verdict  ? 

A.  It  would  not. 

The  Court.  He  is  competent. 

Challenged  by  the  prisoner. 

William  Helmick  was  called,  and  being  duly  sworn  was  examined  on  hia 
voire  dire,  as  follows  : 
By  the  Court: 
Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have  formed,  and  expressed  frequently,  an  opinion  in  reference  to  this 
case. 
^      Q.  In  what  way  have  you  formed  that  opinion  ? 


TRIAL  OP  JOHN  H.   SURRATT,  91 

A.  From  reading  the  proceedings  on  the  trial  of  the  conspirators  some  two 
years  ago. 

Q.  Is  that  opinion  so  decided  as  to  bias  your  mind  in  determining  between 
the  United  States  and  the  prisoner  at  the  bar  ? 

A  No,  sir;  I  do  not  think  that  a  person  should  form  such  an  opinion  as  would 
force  him  to  a  decision  contrary  to  the  law  and  the  testimony  that  should  be 
presented.  If  I  were  otherwise  competent,  I  could  not  consider  myself  incom- 
petent on  that  ground. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment? 

A.  I  do,  and  always  have.  Many  years  ago  I  favored  the  passage  of  a  law 
in  my  State  to  abolish  capital  punishment  in  the  State  entirely.  My  opinion  is 
very  decided  on  it 

Q.  But  as  capital  punishment  is  lawful  by  the  laws  of  the  land,  do  you  think 
you  would  have  anything  to  do  with  that  as  a  juror? 

A.  I  should  very  much  regret  to  have  to  take  an  oath  to  decide  a  case  of  the 
kind.  With  my  present  views  on  that  subject  I  do  not  think  I  would  be  com- 
petent to  decide.  My  prejudices  against  capital  punishment  have  always  been 
such  that  I  do  not  feel  as  if  I  could  sit  as  a  juror  in  a  case  of  murder. 

The  Court.  You  are  excused. 

George  T.  McGlub  was  called,  and  being  duly  sworn  was  examined  on  his 
voire  dire,  as  follows : 
By  the  Court: 
Q   Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 
A.  I  have. 

Q.  How  did  you  form  that  opinion  ? 
A.  By  reading,  ard  from  rumor. 

Q.  Is  that  opinion  so  decided  as  to  affect  your  impartiality  as  a  juror,  in  case 
70U  should  be  sworn,  in  weighing  the  evidence  ? 

A.  If  it  had  not  been  for  circumstances  I  think  it  would  have  been,  but  my 
opinion,  from  circumstances,  has  been  changed. 
Q.  So  you  have  a  double  opinion  on  the  subject  ? 

A.  I  say  my  opinion  has  been  changed  from  circumstances  transpiring  in  re- 
gard to  the  rebellion. 

Q.  What  I  want  to  get  at  is  this:  whether  you  could  do  impartial  justice 
between  the  government  and  the  prisoner  at  the  bar,  according  to  the  law  and 
the  evidence? 
A.  I  would  rather  be  afraid  to  trust  myself. 

Q.  Do  you  believe  though,  you  could  decide  fairly  and  impartially  upon  the  law 
and  the  evidence  in  the  cause,  notwithstanding  those  former  opinions  which  you 
may  have  entertained  ? 

A.  I  might  do  so,  and  then  again  my  feelings  are  of  such  a  character  that  I 
mi^bt  not  be  able  to. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment  ? 
A.  No,  sir. 

The  Court   He  is  a  competent  juror. 
Challenged  by  the  prisoner. 

Jambs  McGran  was  called,  and  being  duly  swoni  was  examined  on  his  voire 
^^rt,  as  follows : 

By  the  Court: 
Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
priaoner  at  the  bar  ? 
A.  I  have. 


92  TRIAL  OF  JOHN  H.  6UBBATT. 

Q.  By  what  means  did  you  form  that  opinion  1 

A.  By  reading,  and  hearing  conversations  in  regard  to  the  matter. 

Q.  Is  that  opinion  bo  strong  in  your  mind  that  it  would  affect  your  verdict  aa 
a  juryman  ? 

A.  I  think  it  would. 

Q.  Do  you  think  it  would  hias  you  as  to  your  verdict  upon  the  law  and 
evidence  that  you  might  receive  in  this  case  ? 

A.  I  think  that  it  would  have  a  tendency  to  do  so. 

Q.  Do  you  entei-tain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment  ? 

A.  No,  sir. 

Mr.  McGran  was  declared  to  he  a  competent  juror. 

Challenged  by  the  district  attorney. 

George  A.  Bohrbr  was  called,  and  being  duly  sworn  was  examined  on  his 
voire  dire,  as  follows  : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  should  like  first  to  hear  the  names  of  the  conspirators  read  before  1 
answer  the  question.     I  understand  that  he  is  indicted  jointly  with  others. 

The  Court.  No,  sir,  he  is  not  indicted  with  others. 

Mr.  BoHRER.  But  indicted  for  acting  jointly  with  others,  as  I  understand. 

The  Court.  No,  sir;  he  is  indicted  for  murder;  the  result  of  a  conspiracj 
with  others. 

Mr.  Bohrbr.  I  have  formed  and  expressed  an  opinion  in  regard  to  the  con- 
spiracy trials  that  have  heretofore  been  had. 

Q.  In  what  way  did  you  form  that  opinion  ? 

A.  From  reading  the  newspaper  reports  of  the  evidence  taken  on  the  trial  of 
the  conspirators. 

Q.  Is  this  bias  on  your  mind  so  strong  as  to  disturb  the  impartiality  of 
your  mind  in  weighing  the  evidence  on  the  trial  in  this  case  ? 

A.  No,  sir. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment  ? 

A,  Probably  I  can  convey  a  better  idea  to  your  honor  before  answering  that, 
by  saying  that  I  expressed  this  opinion  in  regard  to  this  matter  from  the  evi- 
dence. 

Q.  You  will  please  answer  the  question  I  have  just  asked. 

A.  I  have  not. 

I  desire  to  say  with  regard  to  the  first  questions  put  to  me,  that  I  have  said 
that  I  could  not  have  convicted  Mrs.  Surratt  on  the  evidence  adduced  before  the 
commission.  I  think  it  is  due  to  the  court,  to  the  public,  and  to  myself  to  make 
this  statement. 

The  Court,  That  has  nothing  to  do  with  this  case.  We  are  not  inquiring 
here  as  to  the  guilt  or  innocence  of  Mrs.  Surratt. 

The  Court.  Mr.  Bohrer  is  a  competent  juror  in  the  opinion  of  the  court. 

Mr.  Bohrer  was  accepted  and  sworn. 

Christian  C.  Schneider  was  called,  and  being  duly  sworn  was  examined 
on  his  voire  dire,  as  follows  : 
By  the  Court: 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ] 

A.  Yes,  sir. 

Q.  In  what  way  did  you  form  that  opinion  ? 


TRIAL  OF  JOHN  H.   SURRATT.  93 

A.  From  the  papers  and  from  the  evidence  given  on  the  trial  of  the  conspira- 
tors. 

Q.  Is  that  opinion  on  you  mind  so  strong  as  to  render  your  incapable  of 
deciding  according  to  the  law  and  the  evidence  in  this  case  ? 

A.  No,  sir. 

Q.  Do  yon  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment! 

A.  No,  sir. 

The  Court.  Mr.  Schneider  is  a  competent  juror. 

He  was  then  accepted  and  sworn. 

Upton  H.  Ridenour  was  called,  and  being  duly  sworn  was  examined  as  fol- 
lows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
priisoner  at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  did  you  form  that  opinion  ? 

A.  From  reading  the  evidence  given  on  the  trial  of  the  conspirators. 

Q.  Do  you  feel  that  you  have  such  a  bias  on  your  mind  as  to  render  yon  nn- 
capable  of  rendering  an  impartial  verdict  between  the  United  States  and  the 
prisoner  at  the  bar  ? 

A.  I  would  have  considerable  to  overcome  before  I  could  do  it.  I  have  strong 
prejudices. 

The  Court.  That  is  not  an  answer  to  my  question. 

My  question  is  whether  you  feel  that  you  have  such  a  bias  on  your  mind  as 
to  render  you  incapable  to  decide  upon  the  law  and  evidence  in  the  case  ? 

A.  I  think  I  do. 

The  Court.  You  are  excused. 

Isaac  W.  Ross  was  called,  and  being  duly  sworn  was  examined  on  his  voir^ 
dire^  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  % 

A.  No,  sir. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment? 

A.  No,  sir. 

The  Court.  He  is  competent. 

Mr.  Bradley.  Mr.  Ross  is  very  infirm  in  health,  being  aflfected  with  paralysis, 
and  I  think  it  would  be  impossible  for  him  to  sit  upon  a  jury  when  the  trial  will 
be  as  long  and  tedious  as  this  promises  to  be. 

The  Court.  How  is  that  Mr.  Ross  ? 

Mr.  Ross.  I  guess  there  would  be  no  difficulty  about  that.     I  do  not  appre- 
bend  any. 
Challenged  by  the  prisoner. 

CtKorue  a.  Subfpbrlb  was  called,  and  being  duly  sworn  was  examined  on 
bi:}  voire  dire,  as  follows : 

By  the  Court  : 
Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 
A.  Yes,  sir. 
Q.  How? 
A.  From  newspaper  reports  of  the  proceedings  of  the  trial  of  the  conspirators. 


94  TRIAL   OF   JOHN  H.   8URRATT. 

Q.  Is  your  mind  bo  biased  as  to  render  you  incapable  of  deciding  impartially 
on  the  law  and  the  evidence  ? 

A.  I  think  not. 

Q.  Do  you  entertain  any  conscientious  convictions  in  regard  to  the  lawfulness 
of  capital  punishment.   . 

A.  None  at  all. 

By  the  District  Attorney  : 

Q.  Were  you  on  the  last  grand  jury  ? 

A.  No,  sir;  I  think  I  was  on  the  grand  jury  in  1864. 

Q.  You  were  not  on  the  grand  jury  that  found  this  bill  of  indictment? 

A.  No,  sir. 

Challenged  by  the  district  attorney. 

Thomas  E.  Lloyd  was  called,  and  being  duly  sworn  was  examined  on  hia 
tfoire  dire,  as  follows  : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  did  you  form  that  opinion  ? 

A.  I  formed  the  opinion  by  reading  the  proceedings  on  the  trial  of  the  con- 
spirators before  the  military  commission  and  subsequently. 

Q.  Is  that  opinion  so  strong  as  to  affect  yoar  impartiality  on  the  trial  be- 
tween the  United  States  and  the  prisoner  at  the  bar  ? 

A.  As  far  as  I  can  analyze  my  own  mind,  I  believe  I  would  not  be  a  com- 
petent juror. 

Q.  You  think  you  would  be  controlled  in  some  measure  by  that  bias  ? 

A.  I  think  so. 

The  Court.  You  are  excused. 

Walter  W.  Burdettb  was  called,  and  being  duly  sworn  was  examined  on  hi^ 
voire  dire,  as  follows  : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  7 

A.  I  have. 

Q.  In  what  way  did  you  form  that  opinion  1 

A.  From  what  I  have  heard  and  read. 

Q.  Is  your  mind  so  settled  in  that  conviction  as  to  prevent  you  from  render- 
ing an  impartial  verdict  according  to  the  law  and  the  evidence,  between  the 
prisoner  at  the  bar  and  the  United  States  1 

A.  I  believe  I  could  come  to  a  just  conclusion  in  the  case. 

Q.  Do  you  entertain  any  conscientious  convictions  in  regard  to  the  lawful- 
ness of  capital  punishment  ? 

A.  For  many  years  I  have  been  opposed  to  capital  punishment,  or  the  pen- 
alty of  death  for  any  crime. 

Q.  Would  that  prevent  your  rendering  a  verdict  according  to  the  law  and  the 
evidence  ? 

A.  It  would,  where  I  believed  the  sentence  would  be  capital  punishment. 

The  Court.  You  are  excused. 

Frederick  Bates  was  called,  and  being  duly  sworn  was  examined  on  bia 
voire  dire,  as  follows : 
'     By  the  Court  : 

Q.  Have  you  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner 
at  the  bar  1 


TRIAL  OF  JOHN  H.   8UBRATT.  95 

k.  Yes,  sir. 

Q.  In  what  way  did  you  form  it  ? 

^  From  attendance  on  the  trial  of  the  conspirators,  and  from  reading  the  re- 

rts  in  the  newspapers. 

(J.  Is  that  opinion  so  strong  as  to  bias  your  mind  and  affect  your  impartiality 

a  juror,  between  the  United  States  and  the  prisoner  at  the  bar  ? 

A.  I  think  it  would  be. 

The  Court.  You  are  excused. 

&I0SES  T.  Parker  was  called,  and  being  duly  sworn  was  examined  on  his 
Ire  dirtt  as  follows  : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
soner  at  the  bar. 

A.  At  the  early  incipiency  I  did. 
CJ.  How  did  you  then  make  up  your  opinion  t 
A.  Merely  from  the  floating  ideas  and  opinions  at  that  time. 
5-  Do  you  feel  as  if  that  opinion  is  so  strong  as  to  render  you  incapable  of 
idering  an  impartial  verdict  between  the  United  States  and  the  prisoner  at 
:  bar,  upon  the  law  and  the  evidence  ? 

A.  I  have  never  thought  that  an  opinion  entertained  by  me  would  prevent 
rendering  a  verdict  according  to  the  law  and  the  evidence. 
2.  Do  you  entertain  any  conscientious  convictions  against  the  lawfulness  of 
dtal  punishment  ? 
1.  1^0,  sir. 

The  Court.  He  is  a  competent  juror. 
Challenged  by  the  prisoner. 

Nicholas  Acker  was  called,  and  being  duly  sworn  was  examined  on  his  voire 
e,  as  follows  : 

By  the  Court  : 
J.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
soner  at  the  bar  ? 
L  I  have. 

J.  In  what  way  did  you  form  that  opinion  ? 
K,  As  far  back  as  the  conspinicy  trials.     I  read  the  book  on  it. 
ij.  Is  that  opinion  so  strong  as  to  affect  your  impartiality  as  a  juror  in  the 
d  between  the  United  States  and  the  prisoner  at  the  bar  ? 
k,  I  do  not  know  that  it  would  on  the  evidence. 

5.  Have  you  any  conscientious  convictions  against  the  lawfulness  of  capital 
nishment  't 
k.  No,  sir. 
The  Court.  He  is  a  competent  juror. 

By  Mr.  Pierrepont  : 
Q.  You  are  an  American  citizen,  are  you  not  ? 

A.  Partly  so  and  partly  not.     (Fjaughter.)     1  was  born  in  Germany. 
Q.  You  have  been  made  a  citizen  ? 

A.  0,  yes,  sir.  I  will  state,  however,  that  I  cannot  very  well  serve  as  a  juror 
cause  1  am  not  in  good  health,  as  you  will  sec  by  that  note. 
The  Court,  (after  reading  the  noto  referred  to  by  Mr.  Acker.)  He  is  afflicted 
th  rather  a  curious  distaee.  Dr.  Garnett  certifies  that  he  in  at  present  under 
'professional  care ;  that  he  is  troubled  wiih  a  dise:ir»(i  of  the  stomach,  which 
oauces  at  intervals  sudden  mailings  of  blood  to  the  brain,  educing  attacks  of 
mnolency,  which  are^irresistible,  and  oblige  him  for  the  moment  to  go  to  sleep. 
Mr.  Bradley.  Were  you  not  discharged  from  a  jury  in  the  civil  court  on  that 
coont? 


96  TRIAL  OF  JOHN  H.  8URRATT. 

A.  Yes,  sir,  pretty  mnch  on  that  account ;  I  told  the  judge  how  I  was  afflicted. 
The  Court.  Mr.  Acker,  you  are  excused ;  it  won't  do  to  go  to  sleep  on  this 
trial. 

Dr.  J.  L.  Ki DWELL  was  called,  and  being  duly  sworn  was  examined  upon  his 
voire  dire,  as  follows : 
By  the  Court  : 

Q.  I  understand,  Mr.  Kidwell,  that  you  have  some  special  claims  for  exemp- 
tion? 

A.  I  have  three  letters  from  physicians  in  my  immediate  neighborhood  stating 
that  my  services  are  indispensable  in  my  store  at  this  time.     I  will  state  that  I 
have  no  one  in  my  store  at  present  but  a  couple  of  boys,  both  of  my  clerks  being 
.  sick  with  the  typhoid  fever— one  of  them  very  ill. 

The  Court,  lou  are  excused. 

John  T.  Mitchell  was  called,  and  being  duly  sworn  was  examined  on  his  voire 
dire,  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner 
at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  did  you  form  that  opinion  ? 

A.  I  formed  my  opinion  from  reading  the  testimony  before  the  court  that  tried 
the  other  parties.  Also,  by  being  thrown  in  contact  with  one  of  the  witnesses 
before  that  court,  while  travelling.  We  had  a  conversation  tliat  lasted  a  consid- 
erable length  of  time.  What  he  said  made  a  very  serious  impression  on  my 
mind. 

Q.  Do  yon  think  this  impression  on  your  mind  is  such  as  would  render  yon 
incapable  of  deciding  impartially  upon  the  law  and  the  evidence  which  may 
be  elicited  in  the  case  ? 

A.  If  I  have  ever  conscientiously  endeavored  to  come  to  a  conclusion  in  regard 
to  a  matter,  I  have  in  this  particular  case.  If  sworn  as  a  juror  I  would  strive 
to  do  my  duty  both  to  the  prisoner  and  the  United  States,  but  I  should  be  afraid, 
that  under  the  circumstances,  with  the  impressions  that  have  been  made  upon 
my  mind,  that  it  would  be  a  lifelong  regret  with  me  if  I  should  be  compelled  to 
serve. 

The  Court.  You  are  excused. 

Jbnkixs  Thomas  was  called,  and  being  duly  sworn  was  examined  on  his  voire 
dire,  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

Mr.  Thomas.  Will  your  honor  allow  me  to  call  your  attention  to  the  certifi- 
cate that  I  have  laid  on  your  desk?  You  will  see  by  that  that  I  am  physically 
incompetent. 

The  Court.  Dr.  Magruder  certifies  that  Mr.  Thomas  is  subject  to  violent  at- 
tacks of  inflammatory  rheumatism,  and  that  a  change  of  atmosphere  is  always 
likely  to  produce  them.     I  think  it  better  to  excuse  you,  Mr.  Thomas. 

Joseph  L.  Pearson  was  called,  and  being  duly  sworn  was  examined  on  bi^ 
voire  dire,  as  follows : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner 
at  the  bar? 

A.  The  reading  of  the  evidence  taken  on  the  trial  of  the  conspirators,  aai 
the  events  which  have  since  taken  place,  leave  an  impression  on  my  mind  of  the 
.  JWJftrf  the  prisoner. 


J 


TRIAL  OF   JOHN   H.   8UBRATT.  97 

Q.  le  that  impression  so  strong  as  to  render  yon  incapable  of  deciding  impar- 
tiallj  upon  the  law  and  the  evidence  in  the  case  ? 

A.  No,  sir. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of  cap- 
ital punishment  ? 

A.  I  am  only  opposed  to  capital  punishment  when  conviction  is  had  on  cir- 
cumstantial evidence. 

Q.  You  are  not  opposed  to  capital  punishment  if  the  case  is  made  out  ? 

A.  No,  sir ;  not  positively. 
By  Mr.  Bradley  : 

Q.  Are  you  a  taxpayer  ? 

A.  I  never  paid  any  taxes  other  than  the  school  tax. 

The  Court.  He  is  a  resident  here. 

Mr.  Bradley.  There  is  no  school  tax  now,  but  he  says  that  he  has  paid  a 
school  tax  heretofore. 

The  Court.  Is  the  payment  of  taxes  required  now  in  order  to  render  a  man 
a  competent  juror? 

Mr.  Bradley.  Yes,  sir;  he  must  be  a  taxpayer. 

The  District  Attorney.  Have  you  not  paid  the  school  tax? 

Mr.  Pearson.  I  have  paid  the  school  tax  heretofore;  I  have  never  been  as- 
sessed to  my  knowledge. 

The  Court.  I  suppose  the  word  "  taxpayer  "  means  a  man  who  is  liable  to 
pay  taxes,  whether  he  has  paid  them  or  not. 

Q.  Are  you  a  housekeeper  ? 

A.  Yes,  sir. 

Q.  And  h'able  to  pay  taxes  ? 

A.  Yes,  sir. 

The  Court.  I  think  he  is  a  competent  juror. 

Mr.  Merrick.  We  beg  leave  to  except  to  the  ruling  of  your  honor  in  view 
of  the  answer  that  he  gave  as  to  whether  he  had  formed  an  opinion.  Desiring  to 
have  this  exception  reserved,  we  challenge  him. 

William  Ballantynb  was  called,  and  being  duly  sworn  was  examined  on 
his  voire  dire,  as  f  )llow8  : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prirfont'r  at  the  bar  ? 
A.  I  have. 

Q.  In  what  way  have  you  formed  that  opinion? 

A.  From  reading  the  testimony  and  from  listening  to  the  charge  of  the  judge 
^ho  conducted  the  prosecution. 

Q.  Is  your  mind  now  under  such  a  bias  as  to  render  yon  incapable  of  decid- 
iuf^  impartially  between  the  United  States  and  the  prisoner  at  the  bar,  in  case 
yoa  should  be  empannelled  as  a  juror  in  this  case? 
A.  I  think  not. 

Q.  Have  you  any  conscientious  convictions  against  the  lawfulness  of  capital 
panishroent  f 
A.  I  have  not. 

The  Court.  He  is  a  competent  jnror. 
Challenged  by  the  prisoner. 

William  Flinn  was  called,  and  being  duly  sworn  was  examined  on  his 
fw  dire,  as  follows  : 
By  the  Court  : 
Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 


98  TRIAL  OF  JOHN  H    SDRBATT. 

Mr.  Flinn.  I  beg  the  court  to  excuse  me ;  I  have  a  very  sick  child  at  home. 
The  Court.  I  think  that  is  a  good  ground  for  excusing  a  person  from  service 
here.     You  are  excused. 

Patrick  Fleming  was  called,  and  being  duly  sworn  was  examined  on  hid 
voire  dire,  as  follows  : 

1^J  the  Court  : 

Q.  Have  jou  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  did  you  form  that  opinion  ? 

A.  From  the  evidence,  from  newspaper  reports  of  it,  and  from  conversations. 

Q.  Are  you,  in  your  own  judgment,  incapable  of  deciding  impartially  between 
the  United  States  and  the  prisoner  at  the  bar  ? 

A.  I  think  so,  decidedly. 

The  Court.  You  are  excused. 

Jamrs  Y.  Davis  was  called,  and  being  duly  sworn  was  examined  on  his 
voire  dire,  as  follows  : 

By  the  Court  : 
.    Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have  not. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment  ? 

A.  No,  sir. 

The  Court.  He  is  competent. 

Mr.  Davis  was  then  accepted  and  sworn. 

John  Markritbr  was  called  and  duly  sworn. 

The  Court.  Dr.  Riley  certifies  that  Mr.  Markriter  is  under  his  medical  care, 
and  that  he  is  wholly  unfit  to  sit  on  the  jury.     He  is  therefore  excused 

Columbus  Alexander  was  called,  and  being  duly  sworn  was  examined  on 
his  voire  dire,  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  ? 

Q.  From  reading  the  testimony  in  the  conspiracy  trials. 

Q.  Do  you  think  your  mind  is  so  biased  as  to  render  you  incapable  at  this 
time  of  deciding  impartially  in  this  case  between  the  United  States  and  the 
prisoner  at  the  bar  ? 

A.  I  should  decide  the  case  according  to  the  law  and  the  evidence. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment? 

A.  I  do  not  know  that  I  have  any  conscientious  scruples  about  the  matter, 
but  I  am  opposed  to  capital  punishment. 

Q.  As  a  political  question  ? 

A.  Yes,  sir. 

The  Court.  He  is  a  competent  juror. 

Accepted  and  sworn. 

William  H.  Baldwin  was  called,  and  being  duly  sworn  was  examined  on 
his  voire  dire,  as  follows : 


TBIAL   OF  JOHN   H.   SURBATT.  99 

By  the  Court: 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  have  you  formed  it  ? 

A.  From  reading  the  evidence  of  the  trial  at  the  arsenal. 

Q.  Do  you  feel  yourself  under  such  a  bias  at  this  time  as  to  render  you  in- 
capable of  deciding  impartially  between  the  United  States  and  the  prisoner  at 
the  bar  upon  the  evidence  in  the  case  ? 

A.  I  do. 

The  Court.  You  are  excused. 

JoHV  H.  SiMMS  was  called,  and  being  duly  sworn,  was  examined  upon  his 
voire  dire  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner 
at  the  bar? 

A.  I  have  not. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment? 

A.  I  do. 

Q.  Is  that  such  a  conviction  as  would  render  you  incapable  of  rendering  a 
verdict  according  to  the  law  and  the  evidence? 

A.  I  think  it  would. 

The  Court.  You  are  excused. 

John  T.  Givb.\s  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  dire  as  follows  : 
By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
pritfoner  at  the  bar  ? 

A.  I  presume  I  did  do  so,  in  common  with  others,  when  this  case  was  on  trial 
some  two  years  ago. 

Q.  Is  the  bias  you  received  from  that  trial  so  strong  as  to  render  you  incapa- 
ble of  deciding  impartially  at  this  time  between  the  United  States  and  the  pris- 
oner at  the  bar  ? 

A.  I  do  not  know  that  it  would  be. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  lawfulness  of 
capital  punishment  ? 

A.  None  whatever. 

The  Court.  He  is  competent. 

Challenged  by  the  prisoner. 

Washington  B.  Williams  was  called,  and  being  duly  sworn,  was  examined 
on  his  voire  dire  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
priuouer  at  the  bar  ? 

A.  I  have.  « 

Q.  In  what  way  did  you  form  that  opinion  ? 

A.  From  reading  the  papers,  and  conversing  with  the  prisoner's  friends  and 
^Qoauitances. 

Q.  Is  that  biaA  so  strong  as  to  render  you  incapable  of  deciding  impartially 
upon  the  evidence  ? 

A.  It  18. 

The  Court.  You  are  excused. 


100  TRIAL  OF   JOHN  H.  SURE  ATT. 

A.  B.  Stoughton  was  called,  and  being  dulj  sworn,  was  examined  on  his 
voire  dire  as  follows  : 

By  the  Court  : 

Q,  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  In  what  way? 

A.  Mainly  from  reading  the  record  of  the  trial  of  the  conspirators. 

Q.  Is  that  opinion  such  as  would  render  you  incapable  of  deciding  impartially 
on  the  evidence  between  the  United  States  and  the  prisoner  at  the  oar? 

A.  I  think  it  would. 

The  Court.  You  are  excused. 

Peter  Hepburn  was  called,  and  being  duly  sworn,  was  examined  on  bis 
7'oire  dire  as  follows  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  have  you  formed  it  ? 

A.  By  reading  the  proceedings  of  the  conspiracy  trial. 

Q.  Is  the  bias  upon  your  mind  so  strong  as  to  render  you  incapable  at  this 
time  of  deciding  impartially  upon  the  evidence  ? 

A.  It  is. 

The  Court.  You  are  excused. 

Wm.  J.  Rrdstrakb  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  dire  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  How  did  you  form  that  opinion  ? 

A.  By  reading  the  reports  of  the  former  trial — the  conspiracy  trial. 

Q.  Is  your  mind  so  strongly  biased  as  to  render  you  incapable  of  deciding 
impartially  upon  the  evidence  in  this  case? 

A.  I  think  it  is. 

The  Court.  You  are  excused. 

William  McLean  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  did  at  the  time  of  the  trial  of  the  conspirators. 

Q.  Is  the  bias  left  on  your  mind  at  this  time  so  strong  as  to  render  you  inca- 
pable of  deciding  impartially  according  to  the  law  and  the  evidence  in  this  case? 

A.  I  do  not  think  it  is. 

Q.  Have  you  any  conscientious  convictions  against  the  lawfulness  of  capital 
punishment. 

A.  No,  sir. 

James  McGuire  was  called,  and  being  duly  sworn  was  examined  as  follows: 

By  the  Court  : 
Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 


TBUL  OF  JOHN  H.   SURRATT.  101 

A»  I  bave  read  the  testimony  given  on  the  trial  of  the  conspirators.  I  was  in 
New  York  at  the  time,  and  I  formed  an  opinion  at  that  time. 

Q.  Did  it  leave  such  a  bias  on  your  mind  as  to  render  you  incapable  of 
deciding  impartially  on  the  evidence  between  the  Uuited  States  and  the  pris- 
oner at  the  bar  I 

A.  I  believe  not- 

Q.  Do  yon  entertain  any  conscientious  convictions  against  the  lawfulness  of 
capital  punishment  ? 

A.  I  do  not. 

The  Court.  He  is  a  competent  juror. 

By  Mr.  Pierrepont  : 

Q.  Mr.  McGuire,  do  you  pay  taxes  ? 

A.  I  do.  I  would  sav  to  the  court,  however,  that  I  am  a  Gatholic,  and  I  saw 
in  the  New  York  Herald  that  the  United  States  had  taken  exception  to  Cath- 
olics being  on  the  jury. 

The  District  Attorney.  I  hope,  Mr.  McGuire,  you  will  not  hold  us  re- 
sponsible for  what  appears  in  the  public  newspapers  ? 

Mr.  McGuire.  I  would  rather  not  serve,  for  the  reason  stated. 

The  District  Attorney.  I  think  it  is  very  wrongfor  the  newspapers  to  pub- 
lish such  statements. 

The  Court.  If  the  newspapers  say  so  it  is  to  be  presumed  that  the  contrary 
is  the  fact. 

Challenged  by  the  district  attorney. 

John  Wilson  was  called,  and  being  duly  sworn,  was  examined  on  his  v&ire 
dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  1 

A.  I  have. 

Q.  How  did  you  form  that  opinion  7 

A.  From  reading  the  proceedings  had  at  the  trial  of  the  conspirators. 

Q.  Is  that  bias  on  your  mind  so  strong  as  to  render  you  at  this  time  incapa- 
ble of  deciding  impartially  on  the  evidence  between  the  United  States  and  the 
prisoner  at  the  bar  ? 

A.  It  has  rendered  me  altogether  one-sided,  your  honor. 

The  Court.  You  are  excused. 

William  H.  Barbour  was  called,  and  being  duly  sworn,  was  examined  on 
Ma  voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 
A.  I  have. 
Q.  In  what  way  1 
,        A.  By  the  developments  of  the  trial  of  the  conspirators  at  the  arsenal. 
\        Q.  Are  you  under  such  a  bias  now  as  to  be  incapable  of  deciding  according 
to  the  law  and  the  evidence  in  this  case,  between  the  United  States  and  the 
prisoner  at  the  bar  1 
A  No,  sir. 

Q.  Yoa  think  you  are  capable  } 
A.  Yes,  sir. 
Q.  Do  yon  entertain  any  conscientious  convictions  against  the  lawfulness  of 


102  TRIAL  OF  JOHN  H.   SURBATT. 

A.  I  do.  I  have  been  refused  service  on  the  jury  over  and  over  again  on  that 
accoant. 

The  CorRT.  You  are  excused. 

George  T.  Sheriff  was  called,  and  being  duly  sworn,  was  examined  on  his 
roire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  I 

A.  I  have. 

Q.  In  what  way  ? 

A.  From  the  evidence. 

Q.  Are  you  inculpable  of  deciding  impartially  between  the  United  States  and 
the  prisoner  at  the  bar,  on  the  evidence  that  might  be  brought  before  you  io 
this  case  7 

A.  The  evidence  would  have  to  be  very  explicit  to  change  my  views. 

Q.  Do  you  believe  that  you  could  not  weigh  the  evidence  impartially  between 
the  government  and  the  prisoner  I 

A.  I  think  I  could  provided  it  was  explicit  enough. 

Q.  What  I  want  to  know  is  this :  whether,  in  weighing  the  evidence,  your 
mind  could  do  justice  to  both  sides  ? 

A.  It  would  have  to  be  more  explicit  on  one  side  than  the  other. 

The  Court.  I  see  you  ar.»  bia^I.    You  are  excused. 

Samuel  Bacon  was  next  called,  but  it  being  announced  that  he  was  confined 
to  his  house  by  sickness,  his  name  was  passed. 

JoHX  Alexander  was  called,  and  being  duly  sworn,  was  examined  on  his 
^roirr  dtre  as  follow?  :    . 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  r^.ird  to  the  guilt  or  innocence  of  the 
pri  Signer  at  the  bar  f 

A.  1  have. 

Q.  In  what  way  7 

A,  Frvnn  the  testimony  given  on  the  conspiracy  trials. 

Q.  Is  the  bias  on  your  mind  so  strong  as  to  n^nder  you  incapable  of  deciding 
iraiKiniallv  on  the  evidence  between  the  United  States  and  the  prisoner  at  the 
Uir? 

A.  Yt-s,  sir. 

The  Court.  You  arv^  oxouseil. 

William  Bkvan  was  calM.  and  being  duly  sworn,  was  examined  on  his 
i>i*i 'Y  ^itnr  as  follows : 

By  the  Court: 

^«  Have  yon  fonuiHl  an  opinion  in  xvgard  to  the  guilt  or  innocence  of  the 
pruKUier  at  tiie  bar  f 

A.  I  havi', 

^.  In  what  way  f 

A«  Fit^m  rvadtug  ih^  evidence  in  the  i.v»sp:racy  trial. 

^,  la  that  hia«  m^  strong  U|H>n  yvnir  mind  as  to  lender  yon  incapable  of  de- 
fMing  knpariially  on  iht^  evukuvv  Wtw^yu  the  l'ui:ed  States  and  the  prisoner 


TRUL  OF  JOHN   H.   8UBRATT.  103 


A.  I  think  it  is. 
Excused. 


L<)T  Flannerv  was  called,  and  beiag  duly  sworn,  was  examined  on  his  voire 
dire  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner 
at  the  bar  I 

A.  I  have. 

Q.  In  what  wny  ? 

A.  From  being  present  at  the  military  trial. 

Q.  Is  that  bias  so  strong  as  to  render  you  incapable  of  deciding  impartially 
at  this  time  ? 

A.  It  is,  most  undoubtedly. 

Excused. 

Patrick  White  was  called,  and  being  duly  sworn,  was  examined  on  his 
roire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prit*ouer  at  the  bar  ? 

A.  Yes,  sir. 

Q.  How  have  you  formed  it  1 

A.  From  the  tentimony  given  on  the  trial  of  the  conspirators. 

Q.  Is  that  bias  so  strong  as  to  render  you  incapable  of  rendering  an  impar- 
tial verdict  in  this  case  between  the  United  States  and  the  prisoner  at  the  bar  ? 

A.  It  is. 

Excused. 

William  J.  Murtagh  being  called,  was  sworn  and  examined  on  his  voire  dire 
z»  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
priijoner  at  the  bar  1 

A.  I  have. 

Q.  In  what  way  ? 

A.  From  reading  the  testimony  before  the  military  commission. 

Q.  Is  your  mind  so  biased  as  to  render  you  incapable  of  rendering  an  im- 
partial verdict  according  to  the  law  and  the  evidence  ? 

A.  No,  sir. 

Q.  Have  you  any  conscientious  convictions  against  the  lawfulness  of  capital 
punishment  ? 

A.  None  whatever. 

The  Court.  He  is  competent. 

Mr.  MuRTAUH.  I  desire  to  state  that  I  am  a  United  States  salaried  officer, 
^d  am,  therefore,  I  presume,  exempt  under  the  law. 

The  Court.  Yes,  if  that  is  the  case  you  are  excused. 

Charlrs  H.  Armrs  was  called,  and  being  duly  sworn,  was  examined  on 
^i«  voire  dire  as  follows  : 

By  the  Court  : 
Q.  Have  you  fonned  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 

ItrifeAnov  of  flio  Kai*2 


104  TRIAL  OF  JOHN  H.   SURRATT. 

A.  I  have  not. 

Q.  Have  you  any  conecientioas  ecrnples  agaiDBt  the  lawfulness  of  capital 
punishment  ? 
A.  No,  air. 

Mr.  Bradlbv.  Are  you  a  tax  payer? 
A.  Yes,  sir. 
Challenged  by  the  prisoner. 

Jamb:$  M.  Latta  was  called. 

The  CorRT.  Dr.  Johnson  certifies  that  Mr.  Latta  has  been  confined  to  his  honae 
yesterday  by  sickness,  and  is  not  able  to  be  out. 

Jambs  Small  was  called,  and  being  duly  sworn,  was  examined  on  his  voire 
dire  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner 
at  the  bar  in  this  case  ? 

A.  I  have  not. 

Q.  Do  you  entertain  any  conscientious  convictions  against  the  lawfulness  of 
capital  punishment  t 

A.  I  do  not.  I  wish  to  state,  your  honor,  that  I  am  not  a  tax-payer — that 
I  am  not  the  holder  of  any  real  estate. 

Q.  Do  you  keep  house  ? 

A.  Yes,  sir ;  I  am  a  householder. 

The  Court.  You  are  competent. 

Challenged  by  the  prisoner. 

Jo.XATHA.N  Kirk  WOOD  was  called,  and  being  duly  sworn,  was  examined  on 
his  voire  dire,  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  ? 

A.  I  have. 

Q.  In  what  way  ? 

A.  From  the  reports  published  of  the  proceedings  in  the  conspiracy  trial. 

Q.  Is  that  bias  on  your  mind  so  strong  as  to  reuder  you  incapable  of  dedd- 
ing  impartially  on  the  evidence  ? 

A.  5(o.  sir. 

Q.  Do  you  entertain  any  conscientious  convictions  against  the  lawfulness  of 
capital  punishment  ? 

A.  I  do  not. 

Challenged  by  the  district  attorney. 

[This  challenge  exhausted  the  number  allowed  to  the  United  States,  they 
being  allowed  five  and  the  prisoner  twenty.] 

Amos  Hunt  was  called,  and  being  duly  sworn,  was  examined  on  his  voire 
dm  as  follows : 

By  the  Court  : 

Q.  How  old  are  yon  I 

A.  I  wiU  be  64  years  old  the  loth  day  of  August. 

Q.  Have  Toa  expreaaed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
at  ike  bar  I 


TRIAL  or  JOHN  EL  8UREATT.  105 

A.  No,  Bir ;  I  know  nothing  about  it. 

Q.  Do  jou  entertain  any  conscienttous  convictione  in  regard  to  capital  pun- 
ishment ? 
A.  No,  Bir. 
Challenged  by  the  prisoner. 

Jacob  Ramsbbrg  wad  called,  and,  being  duly  sworn,  was  examined  on  his 
voire  dire  as  follows : 

By  the  Coubt  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
pri^ner  at  the  bar  ? 

A.  Nothing  more  than  impression — not  an  opinion. 

Q.  Is  that  impression  on  your  mind  such  as  to  render  you  incapable  of  ren- 
dering an  impartial  verdict  ? 

A.  I  think  not. 

Q.  Have  you  any  conscientious  convictions  against  the  lawfulness  of  capital 
punishment  1 

A.  I  have  not. 

Challenged  by  the  prisoner. 

Gborqb  Clbndbnin  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  In  what  way  ? 

A.  Unfavorable  to  the  prisoner. 

Q.  What  I  meant  was  how  you  formed  it  ? 

A.  From  the  evidence. 

Q.  Is  that  impression  or  opinion  of  yours  such  as  to  render  you  incapable  of 
deciding  impartially  from  the  evidence  ? 

A.  No,  sir. 

Q.  Do  you  entertain  any  conscientious  convictions  against  the  lawfulness  of 
capital  punishment? 

A.  No,  sir.     I  would  say,  sir,  I  would  like  to  be  excused  on  account  of  the 

Wmess  in  ray  office.     Mr.  Middleton  knows  what  my  duties  are  ;  I  am  in  charge 

of  the  office  at  Glen  wood  Cemetery,  and  have  to  be  there  365  days  in  the  year. 

%  Bon,  who  assists  me,  is  a  witness  on  this  trial. 

The  CoiTRT.  That  is  necessary  work,  and  entitles  you  to  an  excuse.    You 

^  therefore,  relieved  from  attendance  here. 

Benjamin  F.  Morsbll  was  called,  and  being  duly  sworn,  was  examined  on 
tis  voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  How  did  you  form  it  ? 

A.  I  formed  such  an  opinion  as  I  suppose  every  man  in  the  community  has 
Ho  leads  and  thinks.  1  formed  this  opinion  from  reading  and  r^ecting  upon 
^  evidence  given  on  the  trial  of  the  conspirators. 


106  TRIAL  OF  JOHN  H.  SURRATT. 

Q.  Does  that  amount  to  Bucb  a  bias  on  yonr  mind  as  to  render  you  incapable 
of  an  impartial  verdict  between  tbe  United  States  and  the  prisoner  at  the  bar  ? 

A.  No,  sir. 

Q.  Do  joa  entertain  any  conscientious  convictions  against  the  lawfulness  of 
capital  punishment  1 

A.  >ione  at  all. 

Accepted  and  sworn. 

John  W.  Wray  was  called,  and  being  duly  sworn,  was  examined  on  bis 
voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  How  have  you  formed  that  opinion  ?  , 

A.  From  the  newspaper  reports  of  the  trial  of  the  conspirators. 

Q.  Does  that  opinion  amount  to  such  a  bias  as  to  render  you  incapable  of 
doing  impartial  justice  between  the  United  States  and  the  prisoner  at  the  bar  ? 

A.  Yes,  sir. 

Excused. 

John  Marburv,  Jr.,  was  called,  and  being  duly  sworn,  was  examined  on  bis 
voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  The  impression  was  made  on  my  mind  at  the  time  of  the  trial,  and  from 
his  fi^uing  away. 

Q.  Does  that  impression  amount  to  such  a  bias  of  your  mind  as  to  render  jou 
incapable  of  deciding  impartially  according  to  the  law  and  the  evidence  ? 

A.  I  think  not. 

Q.  Have  you  any  conscientious  scruples  against  the  lawfulness  of  capital  pun- 
ishment ? 

A.  I  have  not. 

Challenged  by  the  prisoner. 

Ephraim  K.  Whbblbr  was  called,  and  being  duly  sworn,  was  examined  on 
his  voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opipion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  ? 

A.  Yes,  sir. 

Q.  How  have  you  formed  that  opinion  ? 

A.  From  the  newspaper  reports  of  the  conspiracy  trial. 

Q.  Does  that  opinion  amount  to  such  a  bias  of  your  mind  as  to  render  joa 
incapable  of  doing  impartial  justice  between  the  United  States  and  the  prisoner 
at  the  bar  ? 

A.  I  do  not  think  it  would. 

Q.  Have  you  any  conscientious  convictions  against  the  lawfulness  of  capital 
punishment  ? 

A.  No,  sir. 

The  Court.  He  is  a  competent  juror. 

Challenged  by  the  prisoner. 


TRIAL  OP  JOHN   H.   SURRATT.  107 

C.  >r.  SioussA  was  called,  and  being  dulj  sworn,  was  examined  on  his  voire 
dire  aa  follows  : 

By  the  Court  : 

Q.  Have  70a  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  How  did  you  form  that  opinion  ? 

A.  From  the  evidence  on  the  trial  of  the  conspirators. 

Q.  Does  that  opinion  amount  now  to  such  a  oias  as  to  render  you  incapable 
of  deciding  impartially  between  the  United  States  and  the  prisoner  at  the  bar  ? 

A.  It  does. 

£xcui>ed. 

Benjamin  Swarmy  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  fiire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have. 

Q.  How  did  you  form  that  opinion  ? 

A.  From  reading  the  evidence  on  the  conspiracy  trial. 

Q.  Does  that  opinion  so  bias  your  mind  at  this  time  as  to  render  you  incapas 
ble  of  weighing  impartially  the  evidence  on  this  trial  between  the  United  State- 
and  the  prisoner  at  the  bar  ? 

A.  It  would  require  a  great  deal  of  evidence  to  remove  it. 

Q.  You  think  it  would  require  more  evidence  on  one  side  than  it  would  on 
the  other  ? 

A.  Yes,  sur. 

Excused. 

Adam  Gaddis,  Jr.,  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  1 

A.  I  have. 

Q.  How  did  you  form  that  opinion  ? 

A.  From  what  I  read  of  the  evidence  given  on  the  conspiracy  trial. 

Q.  Is  that  bias  on  your  mind  so  strong  at  this  time  as  to  render  you  incapa- 
ble of  giving  an  impartial  verdict  between  the  United  States  and  the  prisoner  at 
ibebar? 

A.  I  think  not.     I  think  I  could  decide  according  to  the  evidence  and  the.  law. 

Q.  Do  you  entertain  any  conscientious  convictions  against  the  lawfulness  of 
capital  punishment  ? 

A.  I  do  not. 

By  Mr.  Bradley  : 

Q.  Is  not  your  store  on  the  road  leading  down  to  the  Navy  Yard  bridge  ? 

A  Yes,  sir. 

Q.  Is  it  not  a  great  place  of  resort  for  persons  who  live  across  the  Eastern 
branch  1 

A.  Yes,  sir. 

Q.  Has  not  this  subject  been  greatly  discussed  in  your  store  and  in  your 
bearincf  % 


108  TRIAL  OF  JOHN   H.   8UBRATT. 

A.  Yes,  sir. 

Q.  And  does  that,  together  with  what  yon  have  read,  form  the  ground  of 
your  opinion  ? 

A.  Yes,  sir. 

Q.  Have  yon  not  had  conversations  with  persons  who  were  witnesses  on  that 
trial? 

A.  Yes,  sir. 

Q.  And  did  such  conversations  assist  in  forming  your  judgment  ? 

A.  I  do  not  know  that  they  did. 

Q.  You  have  had  conversations  with  witnesses  on  that  trial,  and  how  far  they 
have  affected  your  judgment  you  do  not  know  ? 

A.  I  do  not  know  particularly  how  far  they  have  affected  my  judgment. 

Mr.  Bradley.  I  submit  that  he  is  not  a  competent  jurar. 

The  Court.  He  says  there  is  no  such  bias  on  his  mind  as  would  render  him 
incapable  of  deciding  impartially  according  to  the  law  and  the  evidence. 

Mr.  Bradley.  In  ordinary  cases  I  would  have  the  utmost  confidence  iivhim, 
for  I  have  known  Mr.  Graddis  all  his  life. 

The  Court.  I  think  he  is  a  competent  juror. 

Challenged  by  the  prisoner. 

Thomas  E.  Clark  was  called,  and  being  duly  sworn,  was  examined  on  bis 
voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the  pris- 
oner at  the  bar  ? 

A.  I  have. 

Q.  Did  you  form  that  opinion  from  the  evidence  elicited  at  the  trial  by  the  mili- 
tary commission  ? 

A.  Yes,  sir. 

Q.  Have  you  such  a  bias  on  your  mind  at  this  time  as  to  render  you  incapa- 
ble of  deciding  impartially  between  the  prisoner  at  the  bar  and  the  United  States 
on  the  evidence  that  might  be  brought  before  you  I 

A.  I  feel  that  I  have. 

£xcuscd. 

William  Lord  was  called,  and  being  duly  sworn  was  examined  on  his  voire 
dire  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner  at 
the  bar? 

A.  I  have. 

Q.  By  reading  the  newspapers  ? 

A.  Nothing  farther. 

Q.  Is  it  such  a  bias  on  your  mind  as  to  render  you  incapable  of  impartiallj 
deciding  upon  a  verdict  ? 

A.  I  think  not. 

Q.  Have  you  any  conscientious  convictions  against  the  lawfulness  of  capital 
punishment  ? 

A.  None  whatever. 

Challenged  by  the  prisoner. 

Horatio  Browning  being  called, 

The  Court  said :  Dr.  Stone  sends  me  a  certifipiate  certifying  that  Mr.  Brown- 
ing has  been  under  his  professional  charge  for  many  years  past,  and  that  the 


TRIAL   OF   JOHN   H.   SUBBATT.  109 

re  of  his  complaint  is  such  as  to  render  him  whollj  anfit  to  sit  on  anj  jorj 

sensed. 

BNJAMIN  E.  GiTTiNGS  was  callcdi  and  heing  sworn,  was  examined  on  his 
;  dire  as  follows  : 

Bj  the  Court  : 

.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 

>ner  at  tne  har  ? 

T.  GiTTiNus.  May  it  please  your  honor  I  have  been  summoned  on  the  next 

id  jury. 

he  Court.  I  think  this  case  takes  priority  of  the  grand  jury. 

.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 

)ner  at  the  bar  ? 

.  Partially  so,  from  the  evidence  I  read  in  the  papers  of  the  trial  that  took 

e  down  at  the  arsenal. 

;.  Are  you  conscious  of  such  a  bias  on  your  mind  at  this  time  as  to  render 

incapable  of  coming  to  an  impartial  verdict  according  to  the  law  and  the 
ence  between  the  United  States  and  the  prisoner  at  the  bar  ? 
.  No,  sir. 

,.  Have  you  any  conscientious  convictions  against  the  lawfulness  of  capital 
ishmcnt  ? 
.   Not  a  bit,  sir. 

'be  Court.  He  is  a  competent  juror. 

T.  Oittinos.  I  hope  the  judge  will  excuse  me.    I  am  the  only  male  about 
store,  and  I  have  to  open  and  close  it  every  morning  and  evening, 
[r.  Mbrrigk.  I  would  simply  say  to  your  honor  that  Mr.  Gittings  has  one 
he  most  enterprising  wives  in  the  city  of  Washington. 
Ir.  Gittings,  (good-hnmoredly.)  I  hope  that  will  have  no  weight  with  the 
orable  court. 

'he  Court.  Mr.  Gittings,  this  is  a  case  in  which  the  court  feels  justified  in 
baling  to  the  public  spirit  of  the  city.  Citizens  must  make  some  personal 
ifices  for  the  public  interest. 

Ir.  Gittings.  There  are  so  many  others  here  who  can  serve  without  any 
it  inconvenience  to  their  business,  that  I  hope  your  honor  will  consent  to 
ase  me. 

?he  Court.  I  would  be  glad  to  do  so,  but  you  are  so  well  qualified  as  a 
fraan  that  I  do  not  feel  justified  in  doing  so.     There  is  no  citizen  who  has 

bis  private  affairs  to  attend  to.    A  man  who  has  no  business  is  not  fit  to  be 
QTjman.     I  hope  you  will  be  able  to  make  such  an  arrangement  as  will 
'e  you  from  any  loss. 
Accepted  and  sworn 

William  M.  Galt  was  called,  and  being  duly  sworn,  was  examined  on  his 
\Tt  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
risoner  I 
A.  I  have. 

Q.  1  suppose  from  the  newspaper  reports  of  the  trial  of  the  conspirators  t 
A.  Yes,  sir. 

Q.  Are  you  conscious  of  such  a  bias  on  your  mind  at  this  time  as  to  render 
(HI  incapable  of  deciding  impartially  on  the  evidence  between  the  United  States 
i^d  the  prisoner  at  the  bar  ? 


I 


110  TRIAL   OF  JOHN  H.   8URBATT. 

A.  I  think  I  have  not. 
Challenged  by  the  prisoner. 

N.  Gleary  McKnew  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  dire  OB  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar  ? 

A.  I  have  not. 

Q.  Do  you  entertain  any  conscientious  convictions  against  the  lawfulness  of 
capital  punishment  ? 

A.  I  do  not. 

The  Court.  He  is  competent. 

Challenged  by  the  prisoner. 

Lemuel  Towers  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  ? 

A.  T  have. 

Q.  How  ? 

A.  From  the  proceedings  of  the  trial  of  the  conspirators,  and  from  conversa- 
tions with  officers  on  the  trial. 

Q.  Have  vou  such  a  bias  on  your  mind  as  to  render  you  incapable  of  deciding 
impartially  nrom  the  evidence  between  the  United  States  and  the  prisoner  at 
the  bar? 

A.  I  have  no  such  bias.     I  believe  I  could  give  him  a  fair  trial. 

Q.  Do  you  entertain  any  conscientious  convictions  against  the  lawfulness  of 
capital  punishment  ? 

A.  No  sir. 

By  Mr.  Bradley  : 

Q.  How  is  your  health  ? 

A.  I  am  suffering  a  great  deal  with  rheumatism.  I  will  say  here  that  I  can 
bring  a  surgeon's  certificate  that  my  health  is  such  as  not  to  admit  of  my  sitting 
on  a  jury. 

Q.  Do  you  feel  capable  of  going  through  a  protracted  trial  ?  Is  your  health 
such  as  to  enable  you  to  do  so  ? 

A.  I  think  not. 

Excused. 

George  T.  Lanqley  was  called. 

The  Court.  Dr.  Howard  certifies  that  Mr.  Langley's  health  is  such  as  to 
render  it  unsafe  for  him  to  sit  as  a  juror.  I  take  it  the  doctor's  certificate  is 
true,  although  I  must  say  Mr.  Langley's  appearance  does  not  indicate  it. 

Mr.  Lanoley#  I  am  a  little  flush  just  now. 

Gilbert  M.  Wight  was  called,  and  being  duly  sworn,  was  examined  on  his 
voire  dire  as  follows : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  ? 


TRIAL  OF  JOHN   H.   SURRATT.  Ill 

A.  I  have. 

Q.  How  did  you  form  that  opinion  ? 

A.  From  reading  the  evidence  on  the  conspiracy  trials. 

Q.  Are  vou  conscious  of  having  such  a  bias  on  your  mind  at  this  time  as 
would  render  you  incapable  of  giving  an  impartial  verdict  between  the  United 
States  and  the  prisoner? 

A.  I  do  not  think  I  could  give  such  a  verdict. 

Excused. 

Augustus  Schneider  was  called,  and  being  duly  sworn,  was  e^jamined  on  his 
voire  dire  as  follows  : 

By  the  Court  : 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar? 

A.  I  have. 

Q.  How? 

A.  From  reading  the  proceedings  of  the  trial  at  the  arsenal.  I  will  here  state 
that  there  is  another  reason  why  I  think  I  ought  to  be  excused.  I  am  at  work 
up  in  the  post  office,  and  there  is  nobody  there  except  myself  to  attend  to  it.  I 
will  have  to  stop  the  work  if  I  am  required  to  sit  as  a  juror  here. 

Excused. 

Robert  M.  Combs  was  called. 

The  Court.  ITie  mayor  certifies  that  Mr.  Combs  is  one  of  the  corporation 
weigh  masters  in  the  Sixth  ward,  and  is  at  this  time  very  much  engaged  in  that 
business. 

The  District  Attorney.  Is  that  a  good  excuse,  your  honor?  It  is  not  made 
so  in  the  act. 

The  Court.  It  is  a  public  employment. 

Excused. 

Charles  E.  Rittbnhousb  was  called. 

The  Court.  Mr.  Rittenhouse  is  subject  to  some  infirmity  that  renders  him 
unfit  to  sit  as  a  juror.     I  do  not  know  what  it  is.     He  is  excused. 

Joseph  6.  Waters  was  called,  and  being  duly  sworn,  was  examined  on  his 
m'rc  dire  as  follows : 

By  the  Court: 

Q.  Have  you  formed  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
prisoner  at  the  bar? 

A.  I  have. 

Q.  How  did  you  form  it? 

A.  From  reading  the  proceedings  of  the  trial  of  the  conspirators. 

Q.  Have  they  left'  such  an  impression  on  your  mind  as  to  render  you  incapable 
ofreudering  an  impartial  verdict  between  the  United  States  and  the  prisoner  at 
the  bar? 

A.  They  have,  to  a  certain  extent. . 

Q.  Does  that  bias  go  to  such  an  extent  that  you  could  not  weigh  the  evidence 
itttpartially  f 

A.  It  would  certainly  require  a  very  large  amount  of  evidence  to  get  rid  of 
^e  impression  left  upon  my  mind. 

The  Court.  That  is  a  bias.    Ton  are  excused. 


I 


112  TRUL  OF   JOHN   H.   8UBRATT. 

William  W.  Birth  was  called,  and  being  duly  sworn,  was  examiaed  on  hia 
voire  dire  as  follows : 

By  the  Court: 

Q,  Have  you  formed  an  opinion  in  regard  to  tbe  guilt  or  innocence  of  the 
prisoner  at  the  bar? 

A.  I  have. 

Q.  How  did  vou  form  it  ? 

A.  From  reading  the  testimony  in  the  conspiracy  trial. 

Q.  Is  the  bias  upon  your  mind  so  great  as  to  render  you  incapable  of  weighing 
the  evidence  in  the  case  impartially? 

A.  I  think  not. 

Q.  Do  you  entertain  any  conscientious  convictions  as  to  the  guilt  or  inno- 
cence of  the  prisoner  at  the  bar  ? 

A.  No,  sir. 

The  Court.  He  is  a  competent  juror, 

Mr.  Birth.  I  would  suggest,  your  honor,  that  I  am  summoned  on  the  next 
grand  jury. 

The  Court.  O,  well,  if  you  are  sworn  in  this  case  it  will  be  a  good  excuse 
for  getting  off  from  service  there.  The  other  court  would  hardly  expect  you 
to  serve  there  if  you  are  engaged  here. 

Mr.  Birth  was  then  accepted. 

The  District  AtT()RNEY.  I  would  Ftate,  your  honor,  that  we  wish  in  this 
case  to  pursue  the  course,  ordinarily  adopted  in  such  cases,  of  having  the  eleven 
jurors  sworn  now,  and  the  twelfth  remain  unsworn  until  Monday  morning,  in 
order  that  the  jury  may  be  allowed  to  separate  and  be  at  liberty  ou  to-morrow> 
(Sabbath,)  and  thus  be  able  to  make  such  arrangements  as  they  may  desire  before 
entering  upon  the  trial  on  Monday. 

Mr.  Bradlbv.  That  is  all  very  well  if  we  had  not  understood  from  our  learned 
brothers  that,  unless  the  whole  panel  was  sworn  in  to-day,  there  is  no  panel; 
that  the  case  is  not  made  up.  We  learn  from  them  that  that  is  their  interpreta- 
tion of  the  law,  and.  therefore,  if  they  should  succeed  in  maintaining  that  view, 
this  week's  work  will  be  lost  unless  this  jury  is  sworn  in  before  Monday.  We 
can  agree  among  ourselves  very  readily  that  there  may  be  a  recess  from  noir 
until  some  time  this  evening,  when  the  jury  can  be  sworn  in.  But  unless  that  is 
done — unless  the  panel  is  made  complete — if  your  honor  will  look  at  the  statutes 
you  will  find  that  these  gentlemen  will  accomplish  in  this  way  just  what  they 
would  have  accompli$«hed  by  their  motion  which  has  been  denied.  To  acquiesce 
in  the  suggestion  of  the  learned  district  attorney  will  defeat  all  the  work  of  tbe 
past  week. 

Mr.  Pikrrepont.  If  your  honor  please,  this  question  was  up  before  Judge 
Fisher,  and  the  conclusion  he  then  announced  from  the  bench,  and  which  I  sop- 
posed  was  concurred  in  by  counsel  on  both  sides,  was  this,  "  That  should  the 
jury  be  sworn  in  before  the  meeting  of  the  next  term,  to  wit,  10  o'clock  on  Mon- 
day morning,  it  was  all  that  was  required.*'  That  is  the  view  then  expressed, 
as  I  understood,  and,  I  repeat,  concurred  in  by  counsel  on  both  sides.  The 
jurors,  therefore,  being  obtained,  let  the  swearing  in  of  the  twelfth  one  be  de- 
ferred until  Monday  morning,  and  thus  will  the  necessity  of  keeping  the  jury 
together  over  Sunday  be  avoided. 

Mr.  M  BR  RICK.  If  your  honor  please,  I  think  my  learned  brother  is  in  error 
as  to  the  conclusions  to  which  the  Judge  and  counsel  came.  I  say  this  with  all 
due  respect  It  was  suggested  when  Judge  Fisher  was  on  the  bench  that  the 
time  was  very  much  limited  within  which  to  get  a  jury,  Saturday  night  being 
fixed  as  the  extent  of  that  limitation.  I  suggested  that  at  common  law,  as  I 
understood  it,  a  session  of  the  court  or  a  term  of  the  court  never  ended  until  the 


TRIAL   OF   JOHN    H.    8URRATT.  115 

first  day  of  the  succeeding  term,  and  that  the  court  ou^ht  to  be  called  on  the 
first  day  of  the  succeeding  term  as  of  the  old  term,  and  I  believe  that  to  be  the 
rule,  that  this  court  may  be  called  on  Monday  morning.  There  is  great  doubt, 
however,  as  to  %hat  may  be  done  by  the  court  on  that  first  day  of  the  new  term 
acting  as  of  the  old  term,  and  I  find  that  the  general  rule  is  that  nothing  can  be 
done  except  the  mere  correction  of  its  records  as  of  the  old  term ;  that  you  can- 
not then  enter  upon  new  business.  Now,  the  swearing  of  the  twelfth  juror  be- 
ing the  completing  of  tbe  pi^nel,  would  be  the  entering  upon  the  case  anew,  and 
the  act  of  Congress  says  that  the  case  can  only  go  on  where  a  new  term  inter- 
Tenos  during  its  progress — where  the  jury  has  been  impanelled,  and  it  is  neces- 
sary, therefore,  to  complete  the  edipanelling  in  order  to  get  rid  of  the  question 
of  doubt  in  reference  to  the  matter.  It  certainly  is  expedient  that  the  panel 
should  be  completed  to-day. 

Tho  District  Attorn ky.  If  your  honor  please,  our  only  object  is,  if  pos- 
sible, to  avoid  keeping  the  jury  unnecessarily  in  confinement  over  Sunday.  I 
would  suggest,  sir,  that  we  might  adjourn  this  court  over  to  meet  at  9  o'clock 
on  Monday  morning,  in  order  to  meet  the  view  of  the  gentlemen. 

Mr.  Merrick.  Yes ;  but  at  common  law  you  cannot  divide  a  day. 

The  District  Attorn b  v.  I  am  distinct  in  my  recollection  that  Judge 
Fisher 

Mr.  Mkrrick.  You  made  a  similar  suggestion  to  Judge  Fisher,  and  he  said 
laughingly  that  you  might  even  sit  on  Sunday  ;  that  he  would  sit  right  straight 
through. 

Mr.  PiBRRBPONT.  Gould  not  this  court  be  adjourned  to  Sunday  night?  It 
seems  to  me  that  if  we  can  avoid  keeping  this  jury  over  Sunday  it  would  be 
well  to  do  so. 

The  Court.  Sunday  is  a  '•  dies  nan  juridicus.** 

Mr.  PiBRRBPOiVT.  Well,  sir,  we  will  agree  to  anything  that  is  proper  by  which 
this  jury  can  have  their  freedom  on  Sunday. 

Mr.  Bb  ADLBY.  If  the  gentlemen  will  agree  that  the  prisoner  can  consent  to  the 
jury  separating  after  being  sworn  until  Monday  morning,  there  will  be  no  diffi- 
culty whatever  in  accommodating  the  jury  in  the  way  of  which  the  gentleman 
speaks.  Their  doctrine,  however,  is  that  the  prisoner  can  consent  to  nothing  ; 
that  by  the  most  formal  stipulations  he  cannot  waive  any  of  his  rights.  We 
apprehend,  therefore,  that  difficulty  may  arise  in  the  event  of  the  jury  separat- 
ing without  being  sworn.  I  do  not  see  how  the  end  which  the  gentleman  says 
he  aims  at,  of  giving  the  jurors  time  to  make  necessary  arrangements  for  sitting 
on  the  trial,  can  be  obtained  otherwise  than  by  letting  the  jurors  go  now  until 
9  or  10  o'clock  to-night,  and  then  resuming  the  session  of  the  court  at  that  time 
to  have  them  sworn  in. 

The  Court.  I  would  like  to  see  the  language  of  the  act. 

Mr.  PiBRRBPONT.  I  supposed  the  proposition  we  made  could  not  by  any  pos- 
BibOity  work  against  the  prisoner. 

Mr.  Bradley.  I  am  not  quite  sure,  if  your  honor  pleases,  who  is  to  preside 
oyer  the  trial  of  this  case ;  and  what  his  view  may  he  of  the  question  to-day 
made  by  the  gentlemen,  I  do  not  know ;  and  we  do  not  think  it  proper  to  run  any 
risk  about  this  matter.  The  prisoner  is  now  upon  his  trial;  a  jury  has  been 
selected,  and  is  ready  to  be  empanelled ;  and  tlie  law  says  unless  it  is  empan- 
elled before  the  next  term,  the  case  shall  be  continued. 

Mr.  PiBRRBPONT.  We  have  no  other  object  in  view  than  the  securing  for 
these  jurors  the  privilege  of  separating  until  Monday.  Any  mode  which  may 
be  suggested  that  will  accomplish  that  object  we  will  readily  adopt. 

Mr.  Mbrrick.  We  are  as  desirous  as  the  gentleman  can  be,  of  accommodating 
tbe  jury,  but  we  do  not  wish  to  embarrass  tbe  proceedings  in  the  ease. 
8 


114  TRIAL    OP    JOHN    H.   8URRATT. 

Mr.  Bradley.  I  do  not  see  bow  we  can  bind  tbe  United  States  to  any  such 
Btipnlatiou  as  is  proposed. 

Tbe  District  Attorney.  The  language  of  the  law  is  this : 

Mr.  Pierre  PONT.  So  far  as  I  can  understand,  the  panel  has  now  been  formed, 
and  I  cannot  see  why,  under  that  statute,  the  panel  having  been  formed,  the 
court  cannot  adjourn ;  but  of  course  that  is  a  matter  for  your  honor  to  determine. 

Mr.  Bradley.  Does  my  learned  brother  mean  to  say  that  a  jury  is  empan- 
<clled  in  a  cause  before  it  is  sworn  1 

Mr.  Pierrepo.nt.  It  is  generally  sworn  in  connection  with  it. 

Mr  Bradley.  There  is  no  panel  in  this  particular  case. 

Mr.  Merrick.  When  is  a  jury  empanelled  ? 

Mr.  PlERREPONT.  That  is  the  question. 

Mr.  Merrick.  The  jury  cannot  be  said  to  be  empanelled  until  the  last  man 
is  sworn  upon  the  issue. 

Mr.  PiBRREPONT.  I  do  not  want  to  appear  or  claim  to  be  at  all  learned  upon 
the  technical  question  as  to  when  a  jury  is  and  when  it  is  not  empanelled,  but 
my  own  impression  is  that  when  a  jury  is  ordered  into  their  seats,  the  panel 
is  completed.  The  swearing  of  them  is  proceeded  with  in  diHeriBnt  ways  in 
different  courts.  In  some  courts  they  are  sworn  separately,  and  in  others  again 
they  are  all  sworn  together. 

The  Court.  We  have  always  understood  here,  I  think,  that  the  jury  is  re- 
garded as  empanelled  after  the  clerk  pronounces  the  words  :  '^  Gentlemen  of 
the  jury,  stand  together  and  hear  the  evidence.'*  That  closes  the  empanelling 
of  the  jury. 

Mr.  Bradley  read  from  Wharton's  Criminal  Laws  as  follows:  "  Until  the  joiy 
are  all  sworn,  as  has  been  already  noticed,  it  is  not  necessary  that  they  BhoM 
be  kept  together.     They  are  not  empanelled  until  the  whole  jury  is  sworn.'' 

The  Court.  I  think  the  best  way  under  this  law  is  to  have  the  jury  empan- 
elled without  delay. 

Mr.  Bradley.  I  suggest  to  your  honor  that  we  might  take  a  recess  until  ten 
o'clock  to-night,  and  then  swear  in  the  last  juror. 

The  Court.  If  agreeable  to  counsel  the  court  will  make  that  order. 

The  District  Attorney.  If  your  honor  please,  attachments  were  issued 
against  Messrs.  George  H.  Plant  and  William  P.  Dole.  Those  gentlemen  are 
now  in  court ;  what  shall  be  done  with  them  ? 

The  Court.  0,  we  are  so  happily  through,  now,  that  I  am  not  disposed  to 
punish  them.     They  are  discharged. 

After  an  order  for  the  discharge  of  all  jurors  who  had  been  summoned  and 
not  called,  the  court  took  a  recess  till  ten  o'clock  p.  m. 

EVEMNU    SESSION. 

The  court  reassembled  at  ten  o'clock,  evening,  in  the  circuit  court  room, 
pursuant  to  adjournment  at  half  past  one  o'clock. 

The  prisoner  having  been  brought  into  court.  Judge  Wylie  announced  the 
fact,  and  asked  the  counsel  if  they  had  any  proposition  to  make. 

Tbe  jurors  were  then  called,  and  Mr.  Birth,  the  twelfth  juror,  was  about  to 
be  sworn,  when  Mr.  Pien*epont  said  he  did  not  know  what  conclusion  had  been 
arrived  at  in  reference  to  a  stipulation  allowing  the  jury  to  separate. 

The  Court  said  he  knew  nothing  of  a  stipulation,  and  could  only  pass  upon 
such  agreement  as  was  consented  to  by  counsel. 

Mr.  PlERREPONT  said  there  seemed  to  be  a  doubt  in  the  mind  of  the  district 
attorney  whether  the  jury  could  separate  after  having  been  empanelled  int 
murder  trial. 


TRIAL  OP  JOHN  H.  SURRATT  115 

ir.  Bradlby  said  the  whole  flubject  was  a  matter  of  agreement  between  couu- 
and  he  proposed  to  read  a  stipulation  that  the  defence  had  offered, 
rbe  Court  said  he  had  no  desire  to  hear  it,  because  all  parties  must  first 
ee»  and  it  was  for  the  court  to  decide  what  had  been  agreed  upon. 
fr.  Mbrrick  said  the  defence  desired  to  have  the  last  juror  sworn,  and  then 
dlow  the  jurors  to  separate  until  Monday  morning. 

The  Court  said  he  did  not  wish  to  hear  the  contents  of  any  agreement, 
ess  it  had  been  consented  to  on  all  sides. 

ir.  Bradley  asked  if  the  counsel  should  agree  that  the  jury  should  be  dis- 
rged,  whether  such  agreement  would  meet  the  approval  of  the  court. 
The  Court  said  he  was  clearly  of  the  opinion  tnat,  nnder  the  act  of  Con- 
ss,  the  jury  must  be  empanelled  and  sworn.  The  act  uses  the  word 
elled,  but  the  panel  is  not  completed  until  the  jury  is  sworn.  The  word 
elled  was  a  technical  word,  but  it  had  evidently  been  used  by  the  lawmaker 
to  proper  sense,  and  it  is  therefore  necessary  that  all  the  jurors  shall  be  sworn. 
[r.  Birth,  the  twelfth  juror  selected,  was  then  sworn. 

[r.  BuADLBV  said  that,  with  the  permission  of  the  court,  he  would  submit  a 
ion  that  the  indictment  should  not  be  read,  or  the  jury  fully  charged  in  the 
^  ontil  Monday  morning,  and  that  some  stipulation  be  agreed  upon  whereby 
jury  should  be  discharged. 

lie  counsel  for  the  prosecution  wrote  out  a  stipulation  to  the  effect  that  the 
'  might  be  discharged  until  Monday  morning,  with  the  consent  of  the  court, 
without  prejudice  to  either  party. 

[r.  Bradlbv  said  they  could  not  consent  to  that.  The  defence  offered  a 
dation  that  the  same  jury  should  be  retained,  and  that  there  should  be  no 
ndice  to  either  party,  in  order  that  some  of  the  questions  that  had  heretofore 
iged  the  attention  of  the  court  might  again  arise.  The  defence  made  the 
r,  and  it  was  for  the  prosecution  to  accept  or  reject. 

[r.  PiBRRBFONT  said  the  defence  should  accept  the  proposition  of  the  pro- 
idon«  or  the  whole  question  was  at  an  end. 

[r.  Mbrrick  said  the  prosecution  had  so  modified  the  stipulation  submitted 
the  defence  as  to  make  much  difference.  Under  the  stipulation  offered  by 
prosecution  the  whole  subject  may  be  brought  up,  and  the  court  may  be  asked 
^anew. 

[r.  Pibrrepont  said  the  stipulation  of  the  prosecution  was  that,  if  the  court 
Beoted,  the  jury  might  separate  without  prejudice  to  either  party. 
Ir.  Bradley  said  the  defence  stipulated  in  such  a  way  as  to  prevent  the 
stion  from  being  reopened,  while  the  stipulation  of  the  prosecution  leaves  the 
)le  subject  open. 

The  Court  said  it  appeared  counsel  could  not  agree,  and  he  would,  there- 
S  put  the  jury  in  charge  of  the  bailiff. 

Ilr.  PiBRREPONT  said  the  stipulation  offered  by  the  defence  covered  a  great 
1.    The  prosecution  was  willing  to  stipulate  that  the  jury  should  separate, 

they  could  not  agree  to  waive  their  exception  to  the  mode  of  empanelling 
jury.     They  were  willing  to  take  this  jury,  however. 
£r.  Bradley  said  the  prosecution,  it  appeared,  were  willing  to  take  this  jury, 

proposed  to  raise  the  question  of  the  legality  of  the  panel.     It  was  this  that 

defence  wanted  to  prevent,  as  they  desired  not  to  open  the  question  of  the 

tiity  of  the  panel  on  Monday. 

rhe  Court  said,  he  understood  that  the  prosecution  was  not  willing  to  waive 

exception  they  had  taken  to  the  empanelling  of  the  jury. 

ir.  PiBRRBFONT  said  he  would  state  candidly  that  the  prosecution  desired 

jury,  as  they  believed  them  to  be  good  and  fair  men,  and  that  was  all  they 

wanted.     If,  on  Monday,  it  should  appear  to  the  court  that  the  jury  was  not 

lly  empanelled.  Judge  Cartter,  who  would  be  here  at  that  time,  could  dis- 


116  TRIAL   OF   JOHN    H.   SURRATT. 

charge  the  jury,  and  immediately  subpoena  them  over.  They  would  agree  to 
any  reasonable  stipulation,  but  they  wanted  all  things  done  fkirly,  as  the  trial 
promised  to  be  a  long  and  tedious  one. 

Mr.  Mr R RICK  argued  that  to  make  the  trial  legal  the  jury  should  be  em- 
panelled to-night.  On  Monday  Judge  Cartter  would  open  the  June  term  of  the 
criminal  court,  and  it  was  necessary  that  the  jury  should  be  empanelled  at  this 
term. 

Mr.  Bradlry  said  that  the  whole  action  of  the  prosecution  seemed  to  look  as 
though  an  appeal  was  to  be  taken  from  the  decision  of  Judge  Fisher  and  Judge 
Wylie  to  Chief  Justice  Cartter,  and  it  was  to  prevent  all  objection  on  Monday 
that  the  defence  desired  to  have  an  explicit  stipulation  consented  to.  If  the 
prosecution  desired  to  have  the  jury  separate,  they  could  agree  to  that  stipnU- 
tion. 

The  District  Attorney  said  it  seemed  to  him  that  the  stipulation  of  the 
United  States  was  perfectly  fair,  namely  :  That  the  jury  separate  until  Mondaj 
without  prejudice  to  the  rights  of  either  party. 

Mr.  Bradlry.  What  objection  have  you  to  our  stipulation  ?  We  have  not 
heard  it  yet. 

Assistant  District  Attorney  Wilson.  We  have  an  exception  on  tile  to  the 
empanelling  of  the  jury.  The  other  side  asks  us  to  deprive  ourselves  of  that 
advantage. 

Mr.  Bradley.  We  will  accept  that,  and  will  modify  our  proposition  in  that 
way,  but  not  deprive  ourselves  of  the  right  of  the  trial  by  jury. 

Mr.  Merrick  was  willing  to  say  that  the  terms  of  the  stipulation  were  not  to 
apply  to  any  exception  taken  by  the  United  States,  or  appeal  to  the  court  in 
general  term. 

Mr.  Pirrrrpont.  If  you  arc  willing  to  let  the  jury  separate,  and  the  caee 
stands  as  it  does  now  until  Monday,  this  stipulation  covers  it. 

Mr.  Bradlry.  Counsel  on  the  other  side  have  stated  their  object  to  be  to  save 
this  exception.     If  there  is  anything  else  to  save,  let  us  know. 

Mr.  Pirrrrpont.  We  only  wish  to  give  the  jury  the  benefit  of  a  separation. 
We  don't  wish  either  party  to  waive  any  right. 

Mr.  Mrrrick.  The  gentleman  stated  the  question  about  the  empanelling  of 
the  jury  which  Judge  Cartter  may  entertain  on  Monday;  but  there  was  no  ex- 
ception Judge  Cartter  could  entertain.  It  could  only  be  entertained  by  the  court 
in  general  term. 

Mr.  Pirrrrpont.  I  have  no  doubt  about  that. 

Mr.  Mrrrick.  The  gentleman  said  the  exception  might  come  before  Judge 
Cartter. 

Mr.  Pirrrrpont.  I  said  whoever  might  preside ;  and  to  avoid  any  question 
about  the  mode  of  empanelling  the  jury,  we  are  ready  to  stipulate  that  this  same 
jury  shall  continue  to  be  the  jury :  but  we  did  not  want  to  have  the  question  en- 
tirely out  of  the  way. 

Mr.  Bradlry.  It  is  impossible  to  come  to  an  accommodation  with  such 
diverse  views.  We  want  the  jury  to  go  home  without  reservations  or  questions 
as  to  the  empanelliDg. 

The  Coi  RT.  Why  not  t  gentlemen,  clmrg^  the  jury  to-night? 

Mr,  Braui.kv.  Wi*  ^lalT  a@k  your  honor  to  hme  the  indictment  read. 

TIn*  indictment  on  which  the  *prl#ancr  w  aa  Arraigned  waj?  accordingly  read  to    ; 
thi>  jury* 

Iho  Cl*tl«K,  ilksr  rottdioe,  tuid  :  *'And  l*y  thi«  indictment  the  prisoner  pletdi 
tHH  fgutltyt  wA  Ijjte  htahldf  wpen  hig  c«>imtry  for  Irialt  which  coantryyeaarB." 
■       *"  ihi  hiry  be  allowied  to  separate  till  MoiAy 

^el.  a^ks  thh  privilege  for  the  JQiJ* 


TRIAL  OF  JOHN  H.  SDRRATT.  117 

Messrs.  Pibbrbpont  and  Carrinotox.  We  don't  object.  We  offered  the 
stipulation. 

Mr.  Bradlby.  Notliiog  like  it. 

The  Court.  By  consent  of  counsel  on  both  sides,  the  jary  will  be  permitted 
to  separate.  The  clerk  will  enter  this  upon  the  record.  To  the  jury :  Be  here, 
gentlemen,  on  Monday  morning  at  ten  o^clock.  I  do  not  know  that  I  shall  have 
the  pleasure  of  seeing  you.  The  jury  are  admonished  to  avoid  conversation  with 
anybody  on  the  subject  of  this  cause.  If  you  are  thus  approached,  you  should 
regard  it  as  a  personal  indignity.  I  am  inclined  to  think  that  under  the  act  of 
Congress  this  term  is  extended.  I  shall  not,  therefore,  order  the  court  adjourned 
in  course,  but  adjourned  until  Monday  morning  at  ten  o'clock. 

The  court  was  accordingly  adjourned. 

MoiNDAV,  June  18,  1867. 
Criminal  Court — Associate  Justice  Fisher,  presiding. 

The  court  was  opened  at  ten  o'clock,  when  the  clerk  proceeded  to  call  the 
Dames  of  the  jurors  empanelled  on  Saturday,  when  they  all  responded. 

Mr.  Bradley,  Jr.,  then  rose  and  said  :  **  May  it  please  your  honor,  before  the 
district  attorney  proceeds  to  open  the  case  to  the  jury,  I  desire  to  present  an 
application  to  the  court  in  behalf  of  the  prisoner,  in  reference  to  the  procuration 
of  his  witnesses." 

The  paper  was  then  read,  as  follows : 

To  the  honorable  the  justice  of  the  supreme  court  of  the  District  of  Columbia, 
holding  the  criminal  court  for  March  term,  1867 : 
The  petition  of  John  H.  8nrratt  shows  that  he  has  now  been  put  on  his  trial 
in  a  capital  case  in  this  court ;  that  he  has  exhausted  all  his  means,  and  such 
farther  means  as  have  been  furnished  him  by  the  liberality  of  his  friends,  in  pre- 
paring for  his  defence,  and  he  is  now  unable  to  procure  the  attendance  of  his  wit- 
nesses. He  therefore  prays  your  honor  for  an  order  that  process  may  issue  to 
snramon  his  witnesses,  and  to  compel  their  attendance,  at  the  cost  of  the  govern- 
ment of  the  United  States,  according  to  the  statute  in  such  case  made  and  pro- 
vided. 

JOHN  H.  SURRATT. 
Sworn  to  in  open  court,  this  17th  June,  1867. 

Test :  R.  J.  MEIGS,  Clerk. 

Mr.  Bradley.  We  merely  submit  the  motion  now;  your  honor  can  determine 
Qpon  it  in  the  progress  of  the  cause. 

The  Court.  Very  well;  your  petition,  however,  I  will  remark,  it  seems  to 
me  ought  to  indicate  the  witnesses  that  you  desire,  and  where  they  reside.  I 
may  be  mistaken  in  that  respect,  however. 

Mr.  Bradley.  If  the  application  is  granted,  of  course  we  will  have  the  order 
drawn  up  so  as  to  conform  to  the  requirements  of  the  statute. 
The  Court.  Grentlemen,  are  you  now  ready  to  proceed  with  the  case  ? 
Mr.  Bradley.  We  are,  sir. 

Mr.  Carrington  said  the  a8di:*tant  district  attorney  would  open  the  case. 
Mr.  Nathaniel  Wilson,  assistant  district  attorney,  then  addressed  the  jury 
u  follows : 

May  it  please  your  honor  and  gentlemen  of  the  jury,  you  are  doubtless  aware 
that  it  is  customary  in  criminal  cases  for  the  prosecution,  at  the  beginning  of  a 
trial,  to  inform  the  jury  of  the  nature  of  the  offence  to  be  inquired  into,  and  of 
tbe  proof  that  will  be  offered  in  support  of  the  charges  of  the  indictment.  By 
asking  such  a  statement  I  hope  to  aid  you  in  clearly  ascertaining  the  work 
ikat  is  before  us,  and  in  apprehending  the  relevancy  and  pigniiicance  of  the 
testimony  that  will  be  produced  as  the  case  proceeds. 


118  TRIAL  OF  JOHN  H.  SURRATT. 

The  grand  jury  of  the  District  of  Columbia  have  indicted  the  prisoner  at  the 
bar,  John  H.  Surratt,  as  one  of  the  murderers  of  Abraham  Lincoln.  It  has 
become  your  duty  to  judge  whether  he  be  guilty  or  innocent  of  that  charge — a 
duty  than  which  one  more  solemn  or  momentous  never  was  committed  to  human 
intelligence.  You  are  to  turn  back  the  leayes  of  history  to  that  red  page  on 
which  is  recorded  in  letters  of  blood  the  awful  incidents  of  that  April  night  on 
which  the  assassin's  work  was  done  on  the  body  of  the  Chief  Magistrate  of  the 
American  republic — a  night  on  which  for  the  first  time  in  our  existence  a?  n  na- 
tion a  blow  was  struck  with  the  fell  purpose  of  destroying  not  only  human  life, 
but  the  life  of  the  nation,  the  life  of  liberty  itself.  Though  more  than  two 
years  have  passed  by  since  then,  you  scarcely  need  witnesses  to  describe  to 
you  the  scene  in  Ford's  theatre  as  it  was  visible  in  the  last  hour  of  the  Presi- 
dent's conscious  life.  It  has  been  present  to  your  thoughts  a  thousand  times 
since  then.  A  vast  audience  were  assembled,  whose  hearts  were  throbbing  with 
a  new  joy,  born  of  victory  and  peace,  and  above  them  the  object  of  their  grati- 
tude and  reverence — ^he  who  had  borne  the  nation's  burdens  through  many  and 
disastrous  years — sat  tranquil  and  at  rest  at  last,  a  victor  indeed,  but  a  victor  in 
whose  generous  heart  triumph  awakened  no  emotions  save  those  of  kindliness, 
of  forgiveness,  and  of  charity.  To  him,  in  that  hour  of  supreme  tranquillity, 
to  him  in  the  charmed  circle  of  friendship  and  affection;  there  came  the  form  of 
sudden  and  terrible  death. 

Persons  who  were  then  present  will  tell  you  that  at  about  twenty  minutes 
past  ten  o'clock  that  night,  the  night  of  the  14th  of  April,  1865,  John  Wilkes 
Booth,  armed  with  pistol  and  knife,  passed  rapidly  from  the  front  door 
of  the  theatre,  ascended  to  the  dress  circle,  and  entered  the  President's  box.  By 
the  discharge  of  a  pistol  he  inflicted  a  death  wound,  then  leaped  upon  the  stage, 
and  passing  rapidly  across  it,  disappeared  into  the  darkness  of  the  night. 

We  shall  prove  to  your  entire  satisfaction,  by  competent  and  cr^ible  wit- 
nesses, that  at  that  time  the  prisoner  at  the  bar  was  then  present  aiding  and 
abetting  that  murder,  and  that  at  twenty  minutes  past  ten  o'clock  that  night  he 
was  in  front  of  that  theatre  in  company  with  Booth.  You  shall  hear  what  he 
then  said  and  did.  You  shall  know  that  his  cool  and  calculating  malice  was 
the  director  of  the  bullet  that  pierced  the  brain  of  the  President  and  the  knife 
that  fell  upon  the  face  of  the  venerable  Secretary  of  State.  You  shall  know 
that  the  prisoner  at  the  bar  was  the  contriver  of  that  villany,  and  that  from  the 
presence  of  the  prisoner,  Booth,  drunk  with  theatric  passion  and  traitorous  hate, 
rushed  directly  to  the  execution  of  their  mutual  will. 

We  shall  further  prove  to  you  that  their  companionship  upon  that  occasion  was 
not  an  accidental  nor  an  unexpected  one,  but  that  the  butcnery  that  ensued  was 
the  ripe  result  of  a  long  premeditated  plot,  in  which  the  prisoner  was  the  chief 
conspirator.  It  will  be  proved  to  you  that  he  is  a  traitor  to  the  government  that 
protected  him ;  a  spy  in  the  employ  of  the  enemies  of  his  country  in  the  years 
1864  and  1865  passed  repeatedly  from  Richmond  to  Washington,  from  Wash- 
ington to  Canada,  weaving  the  web  of  his  nefarious  scheme,  plotting  the  over- 
throw of  this  government,  <the  defeat  of  its  armies,  and  the  slaughter  of  bis  coun- 
trymen ;  and  as  showing  the  venom  of  his  intent— as  showing  a  mind  insensible 
to  every  moral .  obligation  and  fatally  bent  on  mischief — we  shall  prove  his 
gleeful  boasts  that  during  these  journeys  he  had  shot  down  in  cold  blood  weak 
and  unarmed  Union  soldiers  fleeing  from  rebel  prisons.  It  will  be  proved  to  you 
that  he  made  his  home  in  this  city  the  rendezvous  for  the  tools  and  agents  m 
what  he  called  his  "  bloody  work,"  and  that  his  hand  provided  and  deposited  ot 
Surrattsville,  in  a  convenient  place,  the  very  weapons  obtained  by  Booth  while 
escaping,  one  of  which  fell  or  was  wrenched  from  Booth's  death-grip  at  the  mo- 
ment of  his  capture. 


TRIAL  OF  JOHN  H.  8URBATT.  119 

While  in  Montreal,  Canada,  where  he  had  gone  from  Richmond,  on  the  10th 
of  April,  the  Monday  before  the  assassination,  Surratt  received  a  summons  from 
his  co-conspirator.  Booth,  requiring  his  immediate  presence  in  this  city.  In  obe- 
dience to  that  preconcerted  signal  he  at  once  left  Canada,  and  arrived  here  on  the 
13th.  By  numerous,  I  had  almost  said  a  multitude  of  witnesses,  we  shall  make 
the  proof  to  be  as  clear  as  the  noon-day  sun,  and  as  convincing  as  the  axioms  of 
truth,  that  he  was  here  during  the  day  of  that  fatal  Friday,  as  well  as  present  at 
the  theatre  at  night,  as  I  have  before  stated.  We  shall  show  him  to  you  on 
Pennsylvania  avenue  booted  and  spurred,  awaiting  the  arrival  of  the  fatal  mo- 
ment. We  shall  show  him  in  conference  with  Herold  in  the  evening ;  we  shall 
ehow  him  purchasing  a  contrivance  for  disguise  an  hour  or  two  before  the  murder. 
When  the  last  blow  had  been  struck,  when  he  had  done  his  utmost  to  bring 
Anarchy  and  desolation  upon  his  native  land,  he  turned  his  back  upon  the  abomi- 
Ddtion  he  had  wrought,  he  turned  his  back  upon  his  home  and  kinared,  and  com- 
menced his  shuddering  flight. 

We  shall  trace  that  flight,  because  in  law  flight  is  the  criminaPs  inarticulate 
confession,  and  because  it  happened  in  this  case  as  it  always  happens,  and  always 
must  happen,  that  in  some  moment  of  fear  or  of  elation  or  of  fancied  security,  he, 
too,  to  others,  confessed  his  guilty  deeds.     He  fled  to  Canada.     We  will  prove 
to  you  the  hour  of  his  arrival  there,  and  the  route  he  took.     He  there  found  safe 
ctncealment,  and  remained  there  several  months,  voluntarily  absenting  himself 
from  his  mother.     In  the  following  September  he  again  took  flight.     Still  in  dis- 
guise, with  painted  face  and  painted  hair  and  painted  hand,  he  took  ship  to  cross 
the  Atlantic.     In  mid-ocean  he  revealed  himself  and  related  his  exploits,  and 
gpoke  freely  of  his  connection  with  Booth  in  the  conspiracy  relating  to  the  Presi- 
dent.     He  rejoiced  in  the  death  of  the  President ;  he  lifted  his  impious  hand  to 
lieaven  and  expressed  the  wish  that  he  might  live  to  return  to  America  and  serve 
Andrew  Johnson  as  Abraham  Lincoln  had  been  served.     He  was  hidden  for  a 
time  in  England,  and  found  there  sympathy  and  hospitality  ;  but  soon  was  made 
again  an  outcast  and  a  wanderer  by  his  guilty  secret.     From  England  he  went 
to  Rome,  and  hid  himself  in  the  ranks  of  the  Papal  army  in  the  guise  of  a  private 
soldier.     Having  placed  almost  the  diameter  of  the  globe  between  himself  and 
the  dead  body  of  his  victim,  he  might  well  fancy  that  pursuit  was  baffled  ;  but 
by  the  happening  of  one  of  those  events  which  we  sometimes  call  accidents,  but 
which  are  indeed  the  mysterious  means  by  which  Omniscient  and  Omnipotent  Jus- 
tice reveals  and  punishes  the  doers  of  evil,  he  was  discovered  by  an  acquaintance 
of  his  boyhood.     When  denial  would  not  avail  he  admitted  his  identity,  and 
avowed  his  guilt  in  these  memorable  words  :  '*  I  have  done  the  Yankees  as  much 
harm  as  I  could.   We  have  killed  Lincoln,  the  niggers^ friend^  The  man  to  whom 
Surratt  made  this  statement  did  as  it  was  bis  high  duty  to  do — he  made  known 
bis  discovery  to  the  American  minister.     There  is  no  treaty  of  extradition  with 
tbe  Papal  States  ;  but  so  heincftis  is  the  crime  with  which  Surratt  is  charged, 
such  bad  notoriety  had  his  name  obtained,  that  his  Holiness  the  Pope  and  Car- 
dinal Antonelli  ordered  his  arrest  without  waiting  for  a  formal  demand  from  the 
American  government.     Having  him  arrested,  he  escaped  from  his  guards  by  a 
leap  down  a  precipice — a  leap  impossible  to  any  but  one  to  whom  conscience  made 
life  valuelesa.     He  made  his  way  to  Naples,  and  then  took  passage  in  a  steamer 
that  carried  him  across  the  Mediterranean  sea  to  Alexandria,  in  Egypt.     He  was 
pureaed,  not  by  the  "  bloodhounds  of  the  law"  that  seem  to  haunt  the  imagina- 
tion of  the  prisoner's  counsel,  but  by  the  very  elements,  by  destruction  itself, 
njade  a  bond-slave  in  the  service  of  justice.     The  iaexorable  lightning  thrilled 
along  the  wires  that  stretch  through  the  waste  of  waters  that  roll  between  the 
^liores  of  Italy  and  the  shores  of  Egypt,  and  spoke  in  his  ear  its  word  of  terrible 
^nimand,  ana  from  Alexandria,  aghast  and  manacled  he  was  made  to  turn  his  face 


120  TRIAL  OF  JOHN  H.  8URRATT. 

towards  the  land  he  had  polluted  hy  the  curse  of  murder.  He  is  here  at  last  to 
be  tried  for  his  crime. 

And  when  the  facts  which  I  have  stated  have  been  proved,  as  proved  thejr 
assuredly  will  be  if  anything  is  ever  proved  by  human  testimony ;  and  when  all 
the  subterfuges  of  the  defence  have  been  disproved,  as  disproved  they  assuredly 
will  be,  we,  having  done  our  duty  in  furnishing  you  with  that  proof  of  the  pris- 
oner's guilt,  in  the  name  of  the  civilization  he  has  dishonorea,  in  the  name  of 
the  country  he  has  betrayed  and  disgraced,  in  the  name  of  the  law  he  has  vio- 
lated and  defied,  shall  demand  of  you  that  retribution,  though  tardily,  shall  yet 
be  surely  done,  upon  the  shedder  of  innocent  and  precious  blood. 

Mr.  Bradley,  sr.,  said  the  defence  would  reserve  their  opening  remarks  to  the 
jury. 


EVIDENCE. 


MoAUAY,  June  17. 
let  at  10  a.  m. 

Iabnes,  Surgeon  General  United  States  army,  residence  Wasb- 
8  sworn  and  examined  as  follows  : 

District  Attorn  kv  : 

1  acquainted  with  Abraham  Lincoln,  late  President  of  tbe  United 


1  called  in  your  official  capacity  to  visit  bim  about  tbe  14th  of 
If  so,  state  where  it  was,  and  what  his  condition  was  at  tbe 

led  to  visit  bim  on  the  night  of  the   14tb  of  April.     I  found 

a  the  effect  of  a  gunshot  wound  in  the  liead.     I  remained  with 

ed. 

ere  that  was  1 

^eterson's,  on  the  west  side  of  1 0th  street,  opposite  Ford's  theatre. 

tbe  number  of  the  bouse. 

0  on  and   describe   fully   and   accurately  tbe   character  of  the 
lether,  m  your  opinion,  that  wound  caused  his  death. 

entered  the  scull  to  the  left  of  the  middle  line,  and  below  the 
\T.  It  ranged  forward  and  upward  toward  the  right  eye,  lodg- 
If  an  inch  of  that  organ.  That  wound  was  the  cause  of  bis 
ed  until  twenty  minutes  past  seven  on  tbe  morning  of  the  15th. 
iscious  at  any  time  after  receiving  the  wound, 
u  present  when  be  died  ? 

J  not  in  tbe  theatre  that  night  ? 

i  Mr.  Peterson's,  on  10th  street,  I  understand  you  to  say,  where 

1  to  see  him,  in  this  city  ? 

ti  present  at  the  post  mortem  examination  ? 

upon  the  ])08t  mortem  examination  you  discovered  any  new  fact 
it  important  to  state  to  the  jury,  or  whether  it  simply  confirmed 
ef  that  the  wound  was  the  cause  of  his  death  ? 
:  mortem  examination  merely  <;onfirmed  my  opinion  of  tbe  night 
tbe  gunshot  wound  was  the  cause  of  his  death, 
re  present  at  Mr.  Peterson's  house  at  tbe  time  you  were  first 

e,  Dr.  Lieberman,  Dr.  Tafts,  Dr.  Ford,  some  members   of  the 
►me  officers  of  the  army. 

examine  the  bullet  ? 
mt  not  with  the  view  of  ever  recognizing  it  again.' 

give  some  general  description  of  it  ] 

I  can  give  a  general  description, 
lot  know  that  you  would  be  able  to  identify  the  particular  bullet 

see  it  again  ? 


122  TRIAL  OP  JOHN  H.  SURRATT. 

^,  Can  you  express  an  opinion  as  to  what  sort  of  an  instmmeht  thia  was  in- 
dicted with  ? 

A.  I  call  it  a  gunshot  wound,  as  we  do  all  injuries  inflicted  by  projectiles. 

Q.  Can  you  give  us  any  opinion  as  to  the  character  of  the  instrument,  whether 
it  was  large  or  small  1 

A.  I  think  it.  was  a  wound  from  a  pistol  ball,  at  a  very  short  range. 

No  cross-examination. 

Jambs  M.  Wright,  chief  clerk  Bureau  of  Military  Justice,  residence  Wash- 
ington, sworn  and  examined. 

By  the  Distbict  Attobnky  : 

Q.  Will  you  examine  the  package  on  the  desk  before  you,  and  state  if  the 
articles  contained  therein  were  placed  in  your  official  custody ;  and  if  so,  bj 
whom  and  when,  and  whether  they  have  been  in  your  official  custody  from  the 
time  you  received  them  until  now  ? 

A.  These  articles  belong  to  the  government,  and  have  been  in  my  official 
custody  ever  since  the  records  of  the  conspiracy  trial  were  sent  to  the  office. 
These  are  exhibits  which  were  then  given  in  evidence.  They  are  all  marked. 
Here  is  a  ball,  and  here  is  a  part  of  the  skull,  (witness  removing  paper  covena^ 
around  the  articles  as  he  referred  to  them.)  This  is  the  pistol  that  came  along 
with  the  other  articles. 

By  Mr.  Bradley  : 

Q.  Who  put  these  things  in  your  custody  ? 

A.  Judge  Holt.  They  came  from  the  War  Department,  I  believe,  after  the 
decision  of  the  commission  was  promulgated. 

Q.  Were  the  packages  when  you  received  them  sealed  up  or  open  1 

A.  They  were  all  open  just  as  they  are  now.  They  have  various  marks  m 
the  back  of  them  which  I  never  read. 

Joseph  K.  Barnes,  re-called. 

By  the  District  Attorney  : 

Q.  Will  you  examine  these  two  exhibits  (handing  witness  certain  articles  ci- 
closed  in  paper  covering)  and  state  if  you  ever  saw  them  before.     If  so, 
and  where,  aud  under  what  circumstances  ? 

A.  I  recognize  in  one  of  these  papers  a  fragment  of  bone  that  was  taken 
of  Mr.  Lincoln's  head  on  the  morning  of  the  15th  of  April,  by  Dr.  Woodwui  | 
in  the  presence  of  Dr.  Stone  and  myself.  This  in  the  other  paper  (holding  ii  ; 
his  hand  a  small  piece  of  lead)  I  recognize  most  positively  as  the  ehred  of  led  ^ 
that  was  found  just  inside  of  the  wound,  on  the  edge,  and  taken  away  bytt* 
This  (holding  up  a  leaden  ball)  resembles  most  closely  the  ball.  I  could  Mi*  ^ 
described  it  so  that  you  could  have  recognized  it  from  its  flattened  curled  edpli ; 
That  was  found  in  the  position  I  have  described,  behind  the  orbit  of  the  i^ 
eye,  and  buried  in  the  brain.  ] 

Q.  Did  you  see  the  pistol  there  ?  ] 

A.  I  know  the  kind  of  pistol.  I  never  saw  this  one  here.  That  is  thebiDt  d 
bowever,  for  a  pistol  of  this  size.  j 

Q.  That  ball  resembles  in  appearance  the  one  which  you  saw  taken  btfi^i 
Mr.  Lincoln's  head  ?  j 

A.  Yes,  sir.  This  is  very  much  discolored.  I  made  a  cut  upon  this  hdUl 
because  it  is  made  of  very  much  denser  lead  than  is  generally  used  in  balls.  I^^ 
18  made  of  brittannia  rather  than  lead.  . 

Q.  Do  you  see  that  cut  now  ?  i 

A.  I  do  not  recognize  it,  it  is  so  much  discolored.  I  made  no  private  intf'^il 
on  the  ball. 


i 


TRIAL  OF  JOHN  H.  SUBRATT.  123 

Q.  Suppose  yon  state  now  whether  that  is  hardened  lead  or  not.  See  if  there 
is  any  mark  upon  it  ? 

A.  Not  to  my  eye,  I  cannot  detect  any. 

Q.  Was  there  any  mark  put  upon  it  at  the  time  of  the  post  mortem  examina- 
tion! 

A.  Not  that  I  know  of. 

By  Mr.  Bradlby  : 
Q.  Did  I  understand  you  to  say  yon  cut  this  ball  ? 
A.  I  merely  touched  it  with  my  knife.     It  has  become  black  since  then. 
Q.  Tou  did  not  make  any  incision  ? 
A.  No,  sir. 

By  Mr.  Wilson  : 
Q.  Who  made  the  post  mortem  examination  ? 
A.  Dr  Woodward  of  the  army,  my  assistant,  made  it  by  my  orders. 
Q.  You  were  present  ? 
A.  Tes,  sir ;  and  Dr.  Stone  was  present  also. 

;  William  F.  Kent,  residence  Eighth  street  east,  near  D,  Washington,  sworn 
='ni  examined. 

By  the  District  Attornev  : 

Q.  Were  you  at  Ford's  theatre  in  this  city  on  the  night  of  the  14th  of  April, 
1865? 

A.  I  was. 

Q.  Examine  this  pistol  and  state  whether  you  ever  saw  it  before,  or  one  aim- 
ikrtoit? 

A.  I  think  it  is  the  same  pistol  I  picked  up  in  the  box  the  President  occu- 
^  during  the  night  of  the  14th  of  April.  I  was  present  during  the  play  ; 
beard  the  shot ;  saw  the  man  jump  out  of  the  President's  box ;  and  I  ran  round 
ftom  the  parqnetto  to  the  entrance  of  the  President's  box,  which  I  entered. 
When  I  entered  it  there  were  two  men  present,  who  were  in  the  act  of  lifting  the 
President  out  of  his  chair  and  placing  him  on  the  floor.  Some  one  helped  a 
lorgeon  up  from  the  stage,  and  he  asked  if  any  one  present  had  a  penknife.  I 
hnided  him  mine,  and  with  that  he  cut  the  President's  clothes  open,  examined 
tte  body,  and  turned  him  over  to  see  where  the  wound  was.  Not  discovering 
•nj  on  his  body,  he  run  his  hand  round  his  head,  and  then  said,  **  Here  is  the 
imnd ;"  "  here  is  where  he  is  shot,"  or  words  to  that  effect.  After  they  had 
OBiied  him  out  of  the  theatre,  I  went  out  also.  As  I  was  about  to  go  into  my 
koudmg-house — ^I  was  then  boarding  on  E  street,  near  the  theatre — I  missed 
SJ  keys.  Thinking  that  in  pulling  out  my  penknife  I  might  have  pulled  out 
w  keys  with  it,  and  dropped  them  in  the  box,  I  turned  and  went  back  to  the 
tteatie,  and  entered  the  box  again.  It  was  then  pretty  dark,  they  having  turned 
down  all  the  gas,  and  I  could  not  see.  In  moving  round  in  the  box,  I  knocked 
nv  foot  against  something  hard  on  the  floor.  I  stooped  down  and  picked  up 
what  nroved  to  be  this  pistol.  It  was  lying  close  to  the  outside  of  the  box.  I 
imiBealately  held  it  up,  and  exclaimed,  "  I  have  found  the  pistol."  Some  per- 
son present  told  me  to  give  it  to  the  police.  I  did  not  see  any  there.  Just  then 
a  man  who  represented  himself  as  Mr.  G-obright,  agent  of  the  associated  press, 
came  np,  and  being  vouched  for  by  several  persons,  I  gave  the  pistol  to  him. 
The  next  morning  I  identified  the  pistol  at  the  police  station.  This  is  appar- 
ently the  same  pistol,  as  far  as  I  can  jndge  from  the  appearance  of  it.  It  was 
about  the  length  of  this  one. 

No  cross-examination. 


124  TRIAL   OF  JOHN   H.    8URRATT. 

Henry  R  Rathbone,  brevet  lieutenant  colonel  in  the  regular  army,  and 
assistant  adjutant  general  of  volunteers,  residence  Albany,  New  York,  sworn  and 
examined. 

By  the  District  Attorney  : 

Q.  Did  you  know  the  late  Abraham  Lincoln,  President  of  the  United  States  ? 
If  so,  state  whether  you  saw  him  on  the  evening  of  the  14th  of  April,  1865, 
where  you  saw  him  that  evening,  and  all  that  occurred  from  that  time  until  he 
received  his  death  wound. 

A.  I  was  well  acquainted  with  the  late  President  Lincoln,  and  was  present 
with  him  on  the  night  of  the  assassination. 

Q.  State  all  that  then  occurred. 

A.  On  the  evening  of  the  14th  of  April,  at  about  twenty  minutes  past  eight, 
I,  in  company  with  Miss  Harris,  left  my  residence  at  the  comer  of  Fifteenth  and 
H  streets,  joined  the  President  and  Mrs.  Lincoln,  and  went  with  them  in  their 
caiTiage  to  Ford's  theatre,  on  Tenth  street.  When  we  reached  the  theatre  and 
the  presence  of  the  President  became  known,  the  actors  stopped  playing,  the 
band  struck  up  "  Hail  to  the  Chief,"  and  the  audience  rose  and  received  them 
with  vociferous  cheering.  The  party  proceeded  along  in  the  rear  of  the  drew 
circle  to  the  box  which  had  been  set  apart  for  their  reception.  On  entering  the 
box  there  was  a  large  arm-chair  placed  nearest  the  audience,  and  furthest  from 
the  stage,  which  the  President  took  and  occupied  during  the  whole  of  the  eve- 
ning with  one  exception,  when  he  rose  and  put  on  his  coat.  He  immediately 
after,  however,  resumed  his  former  position.  When  the  second  scene  of  the  third 
act  was  being  performed,  and  while  I  was  intently  observing  the  performance  on 
the  stage,  I  heard  the  report  of  a  pistol  from  behind  me,  and  on  looking  roond 
saw  dimly  through  the  smoke  the  form  of  a  man  between  the  President  and  the 
door.  I  heard  him  shriek  out  some  such  word  as  "  Freedom."  He  uttered  it 
in  such  an  excited  tone  that  it  was  difficult  for  me  to  understand  what  he  said. 
I  immediately  sprung  towards  him  and  seized  him.  He  wrested  himself  firom 
my  grasp,  and  at  the  same  time  made  a  violent  thrust  at  me  with  a  large  kaifo^ 
I  panied  the  blow  by  striking  it  up,  and  received  it  on  my  lefl  arm,  betweoi 
the  elbow  and  shoulder,  and  received  a  deep  wound.  The  man  sprung  towardi 
the  front  of  the  box.  I  rushed  after  him,  but  only  succeeded  in  catching  Ik 
clothes  as  he  was  leaping  over  the  railing  of  the  box.  I  think  I  succeeded  in 
tearing  his  clothing  as  he  was  going  over.  I  instantly  cried  out,  "  Stop  thlt 
man."  I  then  looked  towards  the  President.  His  position  had  not  chaogel 
except  that  his  head  was  slightly  bowed  forward  and  his  eyes  were  chwoi 
Seeing  that  he  was  insensible,  and  believing  him  to  be  mortally  woaiided«I 
rushed  to  the  door  for  the  purpose  of  getting  medical  aid.  I  found  the  door 
barred  with  a  piece  of  wood,  a  heavy  piece  of  plank,  which  was  resting  agtM 
the  wall  and  against  the  centre  of  the  door,  abont  four  feet  from  the  floor.  Th 
people  on  the  outside  were  beating  against  it.  With  some  difficulty  I  remofri  ; 
the  bar,  and  those  who  were  there  came  in.  When  I  returned  into  the  boil 
found  that  they  were  examining  the  person  of  the  President,  but  had  not  Jtt 
found  the  wound.  When  it  had  been  discovered  it  was  determined  to  remofi 
him  from  the  theatre,  and  I  with  some  assistants  went  with  Mrs.  Lincoln  totki 
house  on  Tenth  street  opposite  the  theatre. 

Q.  Will  you  state  your  relative  positions  ?  lu  the  first  place,  who  were  i»  * 
the  box  occupied  by  the  President  besides  yourself? 

A .  President  Lincoln.  Mrs.  Lincoln,  and  Miss  Harris.  President  Lincoln  vtl 
sitting  at  that  part  of  the  box  furthest  from  the  stage  and  nearest  the  audieaek 
Mrs.  Lincoln  was  sitting  nearest  to  him. 

Q.  Toward  the  front  of  the  box  ? 

A.  Yes,  sir  ;  some  two  feet  distant,  probably.  Miss  Harris  was  next  to  hefi 
and  I  a  little  in  the  rear. 


TRIAL  OF  JOHN  H.  SUBRATT  125 

Q.  Did  yon  get  a  good  look  at  the  man  wbo  fired  the  pistol  ? 
A.  I  did  not ;  I  only  saw  him  dimly  through  the  smoke. 
Q.  You  would  not  be  able  to  identify  him  ? 
A.  No,  sir. 

By  Mr.  Pibrbbpont  : 

Q.  Did  you  examine  this  plank  that  you  apeak  of  ] 

A.  Not  carefully. 

Q.  Did  you  observe  to  see  how  it  was  fixed  ? 

A.  I  merely  know  that  it  barred  the  door  and  rested  against  the  wall,  and 
against  the  centre  of  the  door,  and  that  I  removed  it  with  difficulty,  so  securely 
was  it  fixed. 

Q.  Do  you  know  whether  there  was  any  niche  in  the  wall  ? 

A.  I  did  not  notice. 

Q.  Nor  how  it  was  fastened  against  the  door  ? 

A.  No,  sir. 

The  court  here  took  a  recess  for  half  an  hour. 

AFTBBNOON    SESSION. 

JoSBPH  B.  Stewart,  residence  Westchester  county,  New  York,  sworn  and 
«umined. 

By  the  District  Attorney  : 

Q.  You  have  resided  in  Washington  city  ? 

A.  I  resided  in  Washington  city  for  a  time. 

Q.  And  practiced  at  this  bar  ? 

A.  And  practiced  at  this  bar  in  this  court ;  yes,  sir. 

Q.  State  to  the  jury  whether  you  were  at  Ford's  theatre,  in  this  city,  ou  the 
Qfht  of  the  14th  of  April,  1865.  If  so,  state  your  position  at  the  time,  and 
everything  that  occurred  there  under  your  observation,  connected  with  the  as- 
MHination  of  the  late  President  of  the  United  States. 

A.  I  was  at  Ford's  theatre  on  the  night  of  the  14th  of  April.  I  went  in 
cottpany  with  my  sister,  or  sister-in-law,  and  two  other  ladies.  I  occupied  four 
•etts  directly  iu  front  of  the  orchestra.  To  illustrate  what  I  want  to  say  :  the 
tkatre  is  divided  by  two  aisles  one  on  the  left  and  one  on  the  right.  I  was 
Med  in  the  left-hand  comer  chair  (looking  towards  the  stage)  on  the  right- 
bud  aisle.  The  four  seats  I  had  taken  would  commence  with  the  comer ;  I 
Mcapying  the  comer  seat,  and  the  three  on  my  left.  I  was  just  in  a  position 
vbere  I  could  see  everything  on  the  stage,  and  off  at  an  angle  could  see  the 
PMdent  and  the  company  who  were  with  him.  A  young  lady  sat  next  him, 
iad  then  a  gentleman  who  I  knew  to  be  Major  Rathbone.  I  believe  Mrs. 
lineoln  sat  next.  They  were  in  a  second-tier  box,  and  just  in  a  position  where 
I  eonld  see  from  the  breast  up,  of  the  President,  and  the  upper  portion  of  the 
kttut  and  fieice  of  the  other  persons  in  the  box.  I  frequently  noticed  the  box 
inia^  the  performance,  and  more  than  once  had  occasion  to  remark  on  the 
fVMence  of  the  President,  and  his  appearance.  At  the  moment  of  tne  oc- 
cvrence  I  am  about  to  state,  there  was  a  pause,  a  sort  of  interlude,  when,  while 
Bot  looking  straight  at  the  box,  I  saw  a  flash  and  heard  the  report  of  a  pistol  or 

C,  a  clear  report  like  that  of  a  shotted  gun.  Any  one  at  all  accustomed  to 
r  the  report  of  a  gun  can  tell  the  difference.  I,  at  the  moment,  was  speak- 
in|[  to  my  sister,  and  on  raising  my  head,  and  directing  my  attention  to  the 
box,  I  saw,  at  the  same  instant,  a  man  coming  over  the  balustrade,  and  noticed 
the  curl  of  smoke  right  immediately  above  him.  as  he  was  in  a  crouching  posi- 
tf0o,in  the  act  of  leaping  out  of  the  box.  It  was  slowly  sailing  out  from  the  hox. 
As  he  cleared  the  box  I  heard  him  exclaim,  '*  Sic  semper  tyrannis''  That  ex- 
damatioQ  had  escaped  his  lips  before  he  reached  the  stage  below.     This  person 


126  TRIAL  OF  JOHN  H.  SURBATT. 

came  down  to  the  sta  ge  with  his  back  to  the  audience,  cronched  as  he  fell,  and 
came  down  upon  his  knees  with  a  considerable  jar,  but  rose  instantly  with  his 
face  turned  full  upon  the  audience.  I  noticed  at  the  same  instant  that  he  held 
a  very  la^-ge  knife  in  his  hand.  At  the  moment  he  rose,  and  by  the  time  he 
was  fully  up,  with  his  face  to  the  audience,  my  attention  was  fixed  right  on  him. 
I  rose  up,  stepped  forward  on  the  balustrade  of  the  orchestra,  but  it  seemed  to 
project  over  with  a  sort  of  cushion  or  something,  and  my  foot  slipped.  I  step- 
ped into  the  chair  I  occupied  and  jumped  over  on  to  the  stage,  keeping  my  eyes 
distinctly  on  the  movements  of  this  man,  who  I  thought  I  recognized  when  I 
looked  into  his  face.  As  I  made  my  second  step  I  threw  my  eye  back  to  the 
box,  and  could  see  the  other  persons,  but  could  no  longer  see  the  President 
He  had  disappeared  from  my  view.  When  I  reached  the  stage  this  man  crossed 
rapidly,  not  in  a  full  run,  but  in  a  quick  springing  walk,  over  to  the  left-hand 
side  of  the  stage.  I  saw  him  disappear  in  the  passage  leading  to  the  rear  of 
the  building.  I  crossed  the  stage  in  less  time  then  he  did,  considerably.  I  ran 
across  the  stage  with  all  my  might  I  said  to  persons  on  the  stage,  "  Stop  that 
man ;  he  has  shot  the  President."  When  I  turned  around  towards  the  back 
building,  and  had  gone  perhaps  a  second  or  third  step,  I  heard  the  door  slam  at 
the  end  of  the  passage.  As  many  as  five  persons,  ladies  and  gentlemen,  whom 
I  would  suppose,  from  their  appearance  and  action,  belonged  to  the  stage,  came 
into  the  passage.  They  were  in  a  great  state  of  excitement,  and  somewhat  ob- 
structed my  movements,  particularly  one  lady,  who  seemed  to  be  wild  with  ex- 
citement.    Near  the  door,  as  I  approached  it,  I  noticed  a  man  standing. 

Q.  Near  the  back  door  ? 

A.  Yes,  near  the  door,  which  evidently  had  slammed,  and  through  which  I 
passed  out.  When  I  first  observed  him,  his  face  was  turned  towards  the  door. 
He  gradually  turned  towards  me,  but  in  a  very  quiet  manner ;  did  not  show 
any  of  that  measure  of  'excitement  and  agitation  which  characterized  everybody 
else  I  saw.  I  exclaimed  again,  and  heard  somebody  say,  **  He  is  getting  on  a 
horse."  By  this  time  I  was  at  the  door.  All  this  occurred  in  less  time  than  I 
am  telling  it.  When  I  reached  the  door,  which  was  in  an  instant,  I  first  took 
hold  of  the  hinge  side,  then  changed  to  the  other  side,  and  opened  it.  I  heard 
the  tramping  of  the  feet  of  a  horse  outside.  I  passed  within  a  half  arm's  lengA 
of  this  person,  who  was  standing  in  the  position  I  have  mentioned,  and  who 
turned  his  face  toward  me.  As  I  opened  the  door  a  person  was  right  at  it,  anl 
as  I  passed  out,  directly  under  my  arm,  or,  I  might  say  I  passed  my  arm  di- 
rectly over  the  head  of  that  person.  The  action  of  that  person  was  much  likr 
one  taken  by  surprise.  He  seemed  to  crouch  away.  He  either  might  hav6 
passed  in  to  the  door  behind  me  or  at  the  side  door.  He  seemed  to  give  way 
as  I  passed.  My  attention  was  hot  directed  to  his  action  more  than  to  obserre 
that  that  person  was  there.  My  attention  was  fixed  upon  the  movements  of 
the  man  mounting  his  horse.  He  was  imperfectly  mounted ;  was  in  the  saddle, 
but  leaning  over  to  the  left.  The  horse  was  moving  with  a  sort  of  jerking, 
agitated  gait,  as  a  horse  would  do  if  spurred  or  touched  at  the  instant  of  mount- 
ing, describing  a  sort  of  semicircle  from  right  to  left,  &8  I  have  had  a  horse  do» 
with  an  uneven  rein  drawing  him  a  little  to  one  side.  I  never  had  been  in  the 
alley  before.  I  did  not  know  even  that  there  was  an  alley  there,  and  was  dis- 
appointed to  find  it  there.  I  approached  immediately,  with  the  intention  rf 
taking  the  rein. ,  The  horse  was  heading  round,  in  the  direction  that  wodd 
bring  his  head  directly  towards  some  houses  there.  I  ran  as  fast  as  I  possiUy 
could,  aiming  to  get  at  the  reins  of  the  horse.  I  got  up  near  the  flank  of  the 
horse  and  nearly  within  reaching  distance  of  the  man — a  stride  further,  and  I 
might  have  got  hold  of  the  bridle.  With  an  oath  he  brought  his  horse  ronnd 
so  quick  that  his  quarter  came  against  my  arm,  so  that  I  gave  way  towards  4« 
buildings.  He  then  turned  and  came  round  pretty  much  the  same  way  towards 
•ight  hand  side  of  the  alley.     I  followed  him  at  the  right  flank  of  his  hone 


TRIAL  OF  JOHN  H.  SURRATT  127 

as  I  bad  done  before  until  near  tbe  opposite  side  of  the  allcj,  when  he  h^^ded 
bim  round,  and,  crossing  tbe  alley,  I  noticed  that  be  leaned  forward,  holding 
firm  his  knife.     Looking  upward  I  could  see  every  movement ;  when  looking 
down  I  could  see  only  indistinctly.     When  near  tbe  further  side  of  the  alley  be 
brooght  tbe  horse  up  and  beaded  him  off.    At  the  moment  the  horse  made  the 
first  turn  from  these  buildings  over  on  to  the  other  side,  I  demanded  of  the  per- 
son to  stop.     I  bad  no  doubt  in  my  mind  at  all  who  I  was  speaking  to.     I  be- 
lieved I  was  speaking  to  John  Wilkes  Booth.     At  that  instant  some  person  ran 
rapidly  out  of  tbe  alley,  and,  after  bearing  a  few  taps  of  the  foot  going  out  of 
the  alley,  I  beard  two  clicks  or  something  that  echoed,  and  directly  a  shrill 
whistle  was  beard  over  towards  F  street.     That  occurred  while  the  horse  was 
erosBiDg  from  tbe  left  over  to  tbe  right  baud  side  of  the  alley,  before  he  got  bim 
directly  ahead.     As  soon  as  be  got  the  horse  headed  he  did  not  seem  to  get  him 
completely  under  control  of  the  rein  until  be  came  to  the  turn.     I  was  then  so 
netf  the  flank  of  tbe  horse  that  if  he  had  taken  another  step  in  that  direction  I 
eoald  have  put  my  hands  on  bim.     He  then  crouched  over  tbe  pommel  of  the 
saddle,  and  rode  furiously  out  of  the  alley.     I  was  so  close  to  the  horse  at  the 
time  of  tbe  first  two  or  three  strides  that  he  sent  mud  and  du:t  into  my  face  and 
boeom.    I  still  ran  after  the  horse  some  steps ;  why  I  did  it  I  do  not  know.     It 
vaa  a  sort  of  feeling  of  desperation.     I  entertained  no  doubt  in  my  mind  on  the 
Btage,  on  seeing  the  person,  of  being  able  to  lay  bands  on  bim  in  the  house  or 
out  of  it.     I  beard  the  horse's  feet  as  he  rode  out  of  the  alley  distinctly,  and 
heard  them  again  in  what  I  would  take  to  be  over  F  street.     At  all  events, 
there  was  a  quick  sound  like  that  of  a  horse  crossing  a  plank.     The  direction 
was  towards  the  Patent  Office. 
By  Mr.  Pibrrbpont  : 
Q.  Who  was  tbe  man  you  saw  come  on  to  the  stage  and  cross  over  1 
A.  That  man  was  John  Wilkes  Booth. 

Q.  Yon  have  spoken  of  an  alley  through  which  the  horse  went ;  please  state 
whether  tbe  diagram  banded  you  is  correct. 
A.  It  is. 

(The  witness  here  explained  to  the  jury,  from  tbe  diagram  handed  him,  the 
^tterent  positions  in  tbe  alley,  and  also  from  another  diagram  the  different  po- 
ntions  referred  to  on  the  stage.) 
By  Mr.  Bradley  : 
Q.  You  were  on  tbe  opposite  side  of  tbe  stage,  as  I  understand,  from  that  on 
which  Booth  jumped] 

A.  Yes;  I  was  on  the  right-hand  aisle,  I  should  judge  about  twenty  feet 
fr^  the  extreme  right-hand  side  of  the  stage. 

John  B.  Pbttit  sworn  and  examined. 

By  the  Assistant  District  Attornky  : 

Q.  State  to  tbe  jury  where  you  resided  in  April,  1865. 

A.  On  the  14th  of  April,  1865,  I  occupied  a  room  in  the  dwelling-house  No. 
^  P  street,  below  Tenth.  I  ate  elsewhere.  I  was  in  the  rear  part  of  the 
holding.  There  was  a  back  building  to  the  house,  which  was  occupied  by  Mrs. 
liodsay. 

ft.  Describe  the  position  and  relation  of  your  room  to  the  back  part  of  Ford's 
Aeatie. 

A.  I  was  in  there  that  night  or  evening,  and  was  not  out  till  the  next  mom- 
%  The  rear  part  of  that  building  which  I  occupied  was,  I  suppose,  one  hun- 
JW  and  fifty  or  two  hundred  feet  from  the  rear  part  of  Ford's  theatre.  I  was 
^  my  room  reading  by  gas-light. 

Q.  Describe^  if  you  please,  any  sounds  that  you  heard  between  the  hours  of 
^t  and  eleven  o'clock. 


128  TRIAL  OF  JOHN  H.  SUKRATT. 

A.  Adjoining  Mrs.  Lind<»ay'8  house  there  was  an  eating  saloon,  kept  by  a 
Mr.  Gilbert.  The  r«ar  of  it,  with  the  exception  of  a  small  tenement,  was  ad- 
joining the  theatre  lot.  Immediately  west  of  that  lot  was  a  vacant  lot,  which 
appeared  to  be  a  part  of  the  same,  and,  I  believe,  was  not  separated  from  it  by 
any  fence.  I  was  sitting  with  my  back  to  that  vacant  ground.  My  attention 
was  directed  to  several  low  whistlings,  as  though  they  were  signals.  I  do  not 
know  how  often  they  were  repeated,  but  sufficiently  often  to  attract  my  atten* 
tion,  in  connection  with  some  other  noises  which  I  heard. 

Q.  State  where  they  appeared  to  come  from. 

A.  The  signals  or  whistlings  appeared  to  come  from  this  vacant  ground.  I 
stopped  reading  once  or  twice,  and  my  attention  was  so  much  attracted  to  it  that 
I  got  up  to  see  if  I  could  see  any  person,  or  what  there  was  going  on.  It  stmck 
me  there  was  some  mischief  going  on — boys,  or  something  of  the  kind.  My 
attention  was  attracted  to  that  in  connection  with  the  noise  of  a  horse — as  I  sap* 
posed,  it  was  inmiediately  in  the  rear  of  me — which  appeared  to  be  very  aneasy, 
changing  his  position  on  the  paving  stones  back  in  the  alley  leading  to  the  the- 
atre from  the  east.  I  saw  nothing,  and  knew  nothing  until  the  next  morning  of 
what  had  transpired  that  night. 

Q.  State  whether  or  not  you  heard  the  sound  of  a  horse  rapidly  retreating. 

A.  Yes,  I  did ;  some  time  after,  a  very  short  time.  They  appeared  to  be 
pretty  much  together — say  within  a  quarter  of  an  hour.  All  thi»  passed,  I  should 
judge,  in  fifteen  or  twenty  minutes  or  lees.  One  of  the  whistlings,  the  last, 
was  a  very  loud  whistle. 

Q.  From  what  direction  did  the  sound  come  1 

A.  The  horse  was  very  unejisy,  and  directly  after  this  uneasiness  had  taken 
place  the  horse  appeared  to  run  down  the  alley.  1  could  hear  his  hoofs  very 
plain ;  as  plain  almost  as  if  I  had  been  in  the  alley,  if  it  was  in  the  alley.  I  db 
not  know  whether  it  was  or  not. 

Q.  This  was  about  the  time  you  heard  the  shrillest  whistle  ? 

A.  It  was  after.  There  is  an  alley  from  the  theatre  running  eastward; 
whether  it  was  in  that  alley  or  not  I  cannot  say ;  I  saw  nothing. 

Q.  Do  you  know  at  what  time  of  the  night  that  was  ? 

A.  Not  accurately ;  it  was  pretty  late.  It  was  during  the  progress  of  the 
play.  I  could  hear  the  voices  of  the  actors.  I  frequently  heard  the  voices  of 
the  actors  from  the  room  where  I  sat.  During  this  time  I  heard  the  explosion 
of  a  gun  or  pistol,  and  I  could  hear  voices.    I  do  not  know  from  what  direcfion. 

Q.  I  understand  you  that  by  the  side  of  Gilbert's  eating  saloon,  and  back  of 
it,  the  lots  were  vacant  ? 

A.  Yes,  sir ;  there  was  an  alley  of  some  three  or  four  feet  between  Gilbert'i 
eating  saloon  and  the  dwelling  where  1  resided.  Immediately  in  the  rear  of 
Gilbert's  saloon  there  was  a  vacant  space  of  twenty,  thirty,  or  forty  feet,  between 
that  and  the  tenement-house  occupied  by  a  man  of  the  name  of  Raidy.  Ad- 
joining that  was  a  vacant  space  running  to  the  theatre  line,  on  F  street,  and  to 
a  tenement  of  a  man  by  the  name  of  Birch. 

Q.  So  that  there  was  free  communication  to  F  street  ? 

A.  I  think  there  was  no  fence  between  these  vacant  lots  and  the  theatre  Iot> 
because  I  know  these  Raidy 's  came  back  of  the  theatre  to  get  water  for  washing' 

Q.  Do  I  understand  you  to  say  that  immediately  west  of  Gilbert's  eating 
saloon  there  was  a  vacant  lot  ? 

A.  Yes  ;  my  recollection  is  that  there  was  no  well-defined  line  between  that 
and  the  vacant  lot  running  from  the  theatre  to  the  line  of  F  street ;  but  if  1 1^ 
collect  right  there  was  a  board  fence  along  on  the  street. 
Gross-examined  by  Mr.  Bradley: 

Q.  You  say  there  was  a  fence  on  F  street,  across  the  vacant  lot  west  of  Gil- 
bert's saloon ;  I  understand  you  that  there  was  no  fence  on  the  line  of  the  all^ 
inside  t 


TRIAL   OP   JOHN   H.   8URRATT.  129 

A.  No,  there  was  none. 

Q.  Let  me  understand  exactly  this  locality.  You  had  rooms  at  Mrs*.  Liod- 
My'e.  West  of  you,  with  an  alley  three  or  four  feet  between,  was  Gilbert's 
eating  saloon  ? 

A.  Yes;  and  west  of  that  was  the  tenement  of  a  man  by  the  name  of  Birch. 

Q.  And  between  the  eating  saloon  and  Birch's  house  there  was  a  three  or 
four  foot  alley  ? 

A.  No,  there  was  a  vacant  lot  of  perhaps  twenty  feet  between  the  saloon  and 
Birch's  house. 

Q.  Who  lived  next  east  of  Mrs.  Lindsay's  ? 

A.  Mrs.  Shinn,  341. 

Q.  Is  there  not  an  alley  just  beyond  that? 

A.  No,  sir ;  there  is  a  frame  building  belonging  to  Mrs.  Barry.  Then  there 
is  a  carpenter's  shop  between  Mrs.  Moore's  house  and  the  house  of  Mrs.  Barry, 
md  then  Moore's  house  is  on  the  comer  of  the  alley.  h 

Q.  Is  not  the  carpenter's  shop  on  the  alley  ? 

A.  No,  sir ;  Moore's  house  is  on  the  alley. 

Q.  Is  not  the  aUey  west  of  Moore's  house  ? 

A.  No,  sir ;  east. 

Q.  I  understand  you  then  that  your  recollection  is  that  there  was  no  fence 
nmamg  on  the  west  and  north  sides  of  the  theatre  alley,  but  that  there  were 
Tacant  lots  running  d»wn  to  that  alley  ? 

A.  My  recollection  is  that  there  was  no  fence  between  the  theatre  lot  and  this 
tacant  lot,  and  the  lot  occupied  by  Gilbert's  eating  saloon  adjoined  the  vacant  lot. 

Q.  You  did  not  hear  the  testimony  of  Colonel  Stewart  ? 

A.  No,  I  did  not.  I  do  not  pretend  to  be  accurate  about  the  fence.  My 
nom  fronted  this  vacant  place,  and  I  was  there  for  several  months,  but  I  do 
not  recollect  about  it. 

Jambs  P.  Fbrguson,  a  resident  of  Washington,  sworn  and  examined. 
By  the  Assistant  District  Attorney  : 

Q.  State  whether  you  were  at  Ford's  theatre  on  the  night  of  April  14,  1865, 
•ad  state  distinctly  and  as  briefly  as  you  can  what  you  observed  there  about  ten 
o'clock,  or  at  the  time  of  the  assassination  of  the  President. 

A.  On  the  14th  of  April  I  was  keeping  a  restaurant  right  adjoining  Ford's 
fcatre.  HaiTy  Ford  came  into  my  house  in  the  afternoon  and  told  me  if  I 
Wanted  to  see  General  Grant  I  had  better  go  into  the  theatre  and  secure  a  seat, 
a»he  was  to  be  there  that  night — ^he  and  the  President.  Hany  Ford  was  the 
treasurer  of  the  theatre.  He  came  into  my  house  along  about  four  o'clock  in 
tke  afternoon  and  told  me  this.  I  went  in  and  secured  two  seats.  There  was 
a  lady  who  was  going  with  me.  I  secured  two  seats  in  the  dress  circle  right 
•djoining  the  private  boxes,  on  the  opposite  side  from  the  one  in  which  the 
n«8ident  was  in  at  night.  That  night  about  half  past  seven  I  took  this  lady 
to  the  theatre  and  occupied  these  two  seats  in  the  dress  circle.  The  President 
c^ioe  in  along  about  a  quarter  past  eight,  accompanied  with  some  other  gentleman 
*lom  I  understood  to  be  Major  Rathbone,  and  two  ladies,  one  of  whom  was 
fe. Lincoln;  the  other  I  did  not  know.  They  took  their  seats  in  the  box,  and 
the  play  went  on  until  between  fifteen  minutes  and  half  past  ten,  in  the  second 
■ct  and  the  second  scene  of  the  American  Cousin.  I  saw  Wilkes  Booth  come 
^nd  the  dress  circle  down  to  the  door  at  the  entrance  to  the  passage  to  the 

G^ate  boxes.  He  stood  there  and  looked  all  around  well.  A  few  minutes 
ore  that  General  Burnside  came  in  and  took  a  seat  in  the  orchestra.  Booth 
*H)ked  about  the  dress  circle,  then  into  the  orchestra,  then  stooped  down  and 
Fuhed  open  the  door  to  the  passage  leading  to  the  private  boxes  from  the  dress 
•We,  Inhere  are  two  boxes  there,  but  when  the  President  occupied  one  the 
Petition  was  taken  away  and  the  two  thrown  into  one.     He  passed  into  the 


130  TRIAL   OF   JOHN    H.   SURRATT. 

little  ball  leading  to  die  boxes  wbere  the  President  sat,  and  I  did  not  see  him 
for.  I  suppose,  ten  or  fifteen  seconds.  I  was  looking  right  at  the  box,  for  I  was 
very  anxious  to  see  whom  he  was  acquainted  with.  I  understood  that  thiB  other 
lady  was  a  Miss  Harris.  I  wanted  to  see  whether  he  was  acquainted  with  this 
lady  or  with  the  President.  I  then  heard  the  report  of  a  pistol.  I  saw  him  go 
past  the  President's  head  and  come  right  over  the  front  of  the  box,  swinging 
around,  keeping  his  hand  on  the  box  and  letting  himself  down.  As  he  came 
down  he  struck  on  his  right  knee,  but  jumped  to  his  feet  again.  He  had  a  knife 
in  his  hand.     He  ran  across  the  stage  with  his  knife  in  his  hand. 

Q.  Where  did  he  disappear? 

A.  He  passed  out  at  the  small  passage  where  the  actors  come  in.  There  is 
a  passage  on  each  side  of  the  stage. 

Q.  Had  vDu  seen  him  before  on  that  day  I 

A.  I  forgot  that.  I  saw  him.  I  think,  about  one  o*clock.  1  went  to  my  door 
light  Adjoining  Ford's  theatre  on  the  upper  or  north  side,  and  saw  him  on  a 
linle  horse  out  on  the  street  talking  with  a  man  by  the  name  of  Haddoz.  Booth 
said.  "Is  not  this  a  nice  horse  I  have  got  ?  It  can  run  like  a  cat."  Just  then 
I  started  to  come  ouu  when  he  struck  his  spur  into  him  to  show  how  he  could 
run.  and  wont  down  on  Tenth  street.  It  was  the  last  I  saw  of  hmi  until  I  saw 
him  go  into  the  box  that  night. 

Q.  What  part  of  the  play  was  i:  when  you  saw  Booth  come  into  the  box  ? 

A.  I  don't  know  what  part.  It  was  the  second  scen^yf  the  second  act,  I 
think,  of  the  Ameiican  Cousin.  What  part  of  ii  I  do  not  remember  now.  It  is 
5omethin£r  I  am  not  very  well  posted  in. 

f^.  Did  he  say  anything  mox^e  a:  the  lime  yMU  saw  him  in  the  afternoon  in 
regard  to  his  hor!«  ! 

A.  Thai  i«  all  he  said.  I  had  p>;  a1m>s:  ou:  to  him  to  the  curb-stone,  when 
he  started  off. 

Q.  He  did  iK^t  say  anything  as  to  how  long  he  had  the  horse  I 

Mr.  BsADLfiV.  We  are  no:  trying  Bcwdi. 

The  Ascsis^TAXT  District  aVtorxey,  I  am  aware  of  that. 

Mr.  Bkaplbv.  Then  I  objec:  lo  that  question. 

The  A>5SiSTANT  District  Attorxev.  Very  well,  lex  it  go.  Give  the  fall 
name  of  Mr.  Maddox. 

A,  Jajaes  Maddox.  I  do  n "»:  ku«:.w  hSf  o:b>er  name.  He  was  employed  •-'t 
the  thra::^. 

CT»*s-rxain:i;t~.i  by  Mr,  Bradlfv  : 

l^«.  Did  yvva  s«-  aayK>dy  e'sr  oa  :hr  s:a5>r  t^esiaes  Bx«:h  a:  the  time  ? 

A.  Hcniy  Hawk  was  ou  :ir  supe,  I  :b:::k. 

l^.  He  WAS  an  dic:or  5 

A.  Ye:s,  sir, 

Q.  Who  gv^i  on  ;Lt  s:ju^  r.cx:  Ai'itr  b:ia  ? 

A,  1  d^sclar>e  I  «i:nnv";  rt  aly  :«-!!.     1  :h::ik  ::  was  Mr.  Siewart. 

Q.  Was  Kv^th  on  the  ^:Ai^  :hi-::.  or  Liii  b-  r>:  v"a  ? 

A.  1  :h:«k  be  bAi  ^  :  o^,  as  iat  as  1  «n  n>N<]ec:.  Thei>e  was  no  person  o*^ 
iW  siapf  wbei2  lVv:h  wi>  on  ::.  I  >a«*  HAwk  o=i  :br  s:age  about  the  moment 
Booth  had  h^*s  kv*i:V,  bus  1  :tv.;k  ht^  m-A>  :!:;  .N^Iy  r-is*  :in::I  BiXkth  had  passed 
detur  ihiv>Q|rb  atui  out. 

Q.  Whw  w*s  your  j^ca:  ■ 

A,  I  w«#  TyA«  adjx^nini:  tV.e  iNsir^:?'  ':;\,  -r.  :l'v  dr?ss  circle.  The  President 
w«*  «lin>cily  oppiv::^  wbcjv  I  fji:. 

Qh  Th^n  if  a  Uip^  xaa^^  had  p*^:  .  u  :>,;  s:/.^  wh:>  B>::b  was  on  it  yon  woul» 
Imw^  iKW  him } 

Ah  I  c^Mdil  Kav^  j»<vit  h^«w  w^l!  i  v:.^u4:>. 

■^   A»4  yon  ji^  ii^x^  ij^v  a»y  **^oh  ;^?c  " 

NM  \%»  tbo  s:a^  vbP.t^  B>-  ;>j  wx$  :irf-Y      I  ;!i::ik  no  one  got  on 


TRIAL   OP   JOHN   H.    SURRATT.  131 

ke  stage  until  Booth  was  off.     The  instant  he  was  off  Laura  Keene  was  on  the 
lage.    In  fact  there  were  a  half  a  dozen  there  in  a  moment. 
Q.  He  ran  directly  across  the  stage  and  disappeared  ? 
A.  Yes,  sir ;  he  came  down  out  of  that  box  and  ran  out  across  the  stage. 
Q.  Hawk  ran  off  ahead  of  him  1 

A.  Yes,  sir;  the  very  moment  he  got  on  the  stage  Hawk  ran  off,  and  then 
:ere  was  nobody  on  the  stage. 
Q.  Who  came  on  after  Stewart  ? 

A.  Two  or  three  soldiers,  I  think ;  I  do  not  know  where  they  came  from. 
Q.  And  you  did  not  see  any  one  close  enough  behind  Booth  almost  to  touch 
m  as  he  was  coming  out  ? 
A.  No,  sir ;  I  did  not. 

By  the  District  Attorney  ; 
Q.  But  yon  say  there  were  a  good  many  persons  on  the  stage  about  that 
nel 

A.  Yes ;  the  moment  after  he  pased  out. 

Q.  Did  you  not  see  some  persons  advance  towards  the  stage  infimediately 
ipon  his  falling  on  it  ? 
A.  Yes,  sir ;  a  good  many  jumped  on  the  stage. 
Q.  You  do  not  know  Colonel  Stewart  ] 

A  Yes,  sir;  he  is  a  large  man.     I  saw  him  on  the  stage,  but  I  do  not  recollect 
hifl  getting  on  the  stage  until  after  Booth  was  off. 
By  Mr.  Bradlby  : 
Q.  Yon  saw  Booth  go  off  the  stage  ? 
A.  Yes,  sir  ;  I  saw  Booth  go  off  the  stage  before  I  saw  any  person  on  it. 

J08BPH  M.  Dye,  sworn  and  examined. 

By  Mr.  Pierrepont  : 
Q.  State  your  age  and  occupation. 

A  Twenty-three  next  August ;  I  belong  to  the  United  States  army,  and  am 
•  recruiting  sergeant  in  Philadelphia. 
Q-  In  the  regular  army  ? 
A.  Yes,  sir. 

Q-  Where  are  you  now  stationed  ? 
A.  I  am  stationed  in  Philadelphia. 

Q-  How  long  have  you  been  stationed  in  Philadelphia,  or  about  how  long  ? 
A.  A  little  over  a  year. 
Q  Where  did  you  go  to  Philadelphia  from? 
A.  From  New  York. 

Q«  From  what  place  did  you  go  to  New  York  ? 
A.  From  my  home. 
Q-  Where  is  that? 

A.  Washington  county,  Pennsylvania. 
Q-  Were  you  in  the  army  in  April,  1865? 
A.  I  Was. 

V  Where  was  your  regiment  stationed  on  the  14th  of  April,  1865? 

A.  I  belonged  to  battery  C,  independent  Pennsylvania  artillery,  stationed  at 
^^p  Barry. 
X'  Tell  me  where  Camp  Barry  was. 

^  It  was  at  the  junction  of  H  street  and  the  Baltimore  turnpike. 
%'  Give  as  a  description  of  what  direction  it  was  from  Ford's  theatre. 
^  It  ia  out  H  street. 

H'  The  same  way  as  the  Capitol,  except  north  of  the  Capitol  ? 
J'Vsir. 

V  flow  far  was  your  camp  from  Ford';j  theatre  ? 


132  TRIAL  OP  JOHN  H.  8URRATT. 

A.  Iprceume  nearly  two  miles. 

Q.  Were  you  in  Washington  on  the  night  of  the  murder  ? 

A.  I  was. 

Q.  Was  there  any  officer  with  you  ? 

A.  Yes,  sir ;  Sergeant  Robert  Cooper. 

Q.  Is  Sergeant  Robert  Cooper  hero  in  town  ? 

A,  Yes,  sir.  * 

Q.  .You  have  seen  him  lately  ? 

A.  Yes,  sir. 

Q.  Have  you  seen  him  to-day  ? 

A.  Yes,  sir. 

Q.  Where  were  you  on  the  evening  of  the  14th,  at  the  time  of  the  murder  ? 

A.  I  was  in  an  oyster  saloon. 

Q.  Will  you  state  when  you  went  into  the  oyster  saloon,  and  from  what  place 
you  went  ? 

A.  From  Ford's  theatre. 

Q.  At  what  time  in  that  evening  did  you  come  to  Ford's  theatre  ? 

A.  I  arrived  there  about  half  past  nine  o'clock. 

Q.  Who  was  with  you  ? 

A.  Sergeant  Cooper. 

Q.  Had  you  any  pass — were  you  allowed  to  come  there  ? 

A.  I  had  a  monthly  pass,  but  I  think  it  was  then  out  of  date. 

Q.  Were  you  at  the  tneatre  ? 

A.  I  was  in  front  of  the  theatre. 

Q.  Were  you  sitting  or  standing  most  of  the  time  ? 

A.  Sitting. 

Q.  What  were  you  sitting  upon  ? 

A.  Upon  some  plank,  or  something  of  the  kind,  placed  there,  in  order  to  alle- 
viate persons  getting  in  and  out  of  carriages. 

Q.  Did  you  sec  Mr.  Lincoln's  carriage  there  ? 

A.  I  did,  sir. 

Q.  What  was  the  condition  of  the  street  in  front  of  the  theatre  that  night  as 
to  its  being  light  ? 

A.  It  was  light  directly  in  front  of  the  door. 

Q.  In  what  way  ? 

A.  There  was  a  large  lamp  there. 

Q.  A  gas  lamp  ? 

A.  I  cannot  swear  as  to  its  being  gas  or  oil. 

Q.  State  whether  it  was  light  or  not. 

A.  It  was  light. 

Q.  Do  you  remember  what  the  temperature  of  that  evening  was,  whether  it 
was  cold  or  mild  ? 

A.  It  was  mild. 

Q.  As  you  sat  there  upon  this  plank,  what  was  Sergeant  Cooper  doing  I 

A.  Sergeant  Cooper  was  moving  up  and  down  upon  the  pavement. 

Q.  Did  you  have  any  conversation  with  him  while  you  remained  there  ? 

A.  Yes,  sir. 

Q.  While  you  were  sitting  there,  state  whether  there  was  any  change  in  tW 
inside  of  the  theatre  as  to  pe^pons  coming  out  at  the  end  of  any  act  ? 

A.  They  did. 

Q.  State  what  that  was,  and  when. 

A,  Parties  came  down — I  presume  it  was  about  ten  or  fifteen  minutes  aft^ 
we  got  there — and  went  into  the  saloon  below  and  the  saloon  adjoinmg  ^ 
theatre  to  drink. 

Q.  Were  there  quite  a  number  of  them  ? 

A.  Yes,  sir. 


TRIAL    OF   JOHN   H.    8UEBATT.  133 

Q.  As  these  people  came  down  from  the  theatre  at  the  time  you  mentioD, 
whom  did  you  see,  and  what  did  you  hear  said  in  relation  to  Mr.  Lincoln's  car- 
riage ? 

A.  Before  they  came  down  I  beard  conversation  there. 

Mr.  Bbadley.  We  object  to  that  conversation. 

Mr.  PiERRKPONT.  Before  you  answer  thiit  question  I  will  ask  you  another. 
State  whether  you  know  John  Wilkes  Booth. 

A.  I  do,  sir. 

Q.  State  whether  John  Wilkes  Booth  was  one  of  the  persons  who  entered  into 
that  conversation. 

A.  He  was. 

Q.  Now  state  what  it  was. 

Mr.  Mkrrick.  We  object  to  the  question.  I  will  state  our  objection,  unless  it 
ia  the  proper  order  for  the  gentleman  on  the  other  side  to  state  the  grounds  on 
which  they  offer  the  declarations  of  Booth. 

The  Court.  You  may  state  the  ground  of  your  objection. 

Mr.  Mbrrick.  The  ground  of  our  objection  is  that  they  propose  now  to  offer  the 
declarations  of  Booth  for  the  purpose  of  effecting  the  prisoner  at  the  bar.  They 
bave  established  no  connection  hetween  Booth  and  the  prisoner  as  yet.  I  state 
this  objection,  not  for  the  purpose  of  arguing  it,  but  in  order  that  counsel  may 
piwent  the  grounds  upon  which  they  make  the  offer. 

Mr.PiuRRBPONT.  I  present  no  grounds.  It  must  be  apparent,  without  any 
Mrt  of  argument,  that  what  John  Wilkes  Booth  did  in  connection  with  this  mur- 
der is  evidence. 

Mr.  Bradley.  We  supposed  that  possibly  might  be  the  ground  of  the  gentle- 
iiian*8  offer.  I  take  it  for  granted  that  whatever  John  Wilkes  Booth  may  have 
■lid  or  done,  unless  they  connect  the  prisoner  at  the  bar  with  John  Wilkes 
Booth  in  that  transaction,  is  of  no  sort  of  consequence.  I  suppose,  if  the  prosecu- 
tion are  to  proceed  upon  the  ground  of  conspiracy,  they  must  first  establish  some 
connection  between  the  two  parties ;  when  that  is  done,  how  far  the  evidence  may 
beadmissible  is  another  question.  But  until  that  is  done,  although  Booth  may 
We  killed  the  President,  and  fifty  other  people  have  been  connected  with  him — 
^>Qt)lthey  show  that  this  party  was  so  connected,  his  declarations  cannot  possibly 
fcc  evidence. 

Mr.  FiERRBPOXT.  We  state  to  the  court  that  we  shall  connect  the  prisoner  with 
it 

Mr.  Bradlbv.  That  is  an  entirely  different  question.  That  has  never  been 
•tated  before. 

Mr.PiBRREPONT.  We  say  it  now. 

^  The  Court.  Of  course,  if  the  counsel  for  the  prosecution  fail  to  make  connec- 
2»i  of  Booth  with  the  prisoner  at  the  bar,  what  ever  Booth  said  or  whatever  he 
m,  although  he  may  have  committed  the  murder  charged  against  the  prisoner, 
'OS  declarations  could  not  he  testimony  against  the  prisoner. 

Kr.  Bradlbv.  As  the  gentlemen  now  put  it  upon  the  ground  that  they  ex- 
P^  to  connect  the  prisoner  with  Booth,  it  is  entirely  within  the  discretion  of 
^  court  to  say  whether  they  will  permit  testimony  to  be  given  until  some 
^parent  connection  is  established.  This  is  an  enormous  case,  and  I  ask  the 
?*it  whether  they  are  to  be  allowed  to  continue  the  trial  of  all  the  parties  named 
^the  indictment,  through  this  immense  mass  of  testimony,  before  they  offer  any 
^^Winection  of  the  prisoner  at  the  bar  with  the  transaction,  or  will  your  honor 
f^ertised  beforehand  require  them  to  bring  forward  their  evidence  connecting 
■ittwithit. 

The  Court.  The  usual  course  of  proceeding  in  such  case  is  to  tell  the  counsel 
*•*  they  must  use  their  discretion  as  to  what  part  of  the  case  they  will  present 
^  particular  evidence  in.    I  always  advertise  counsel,  however,  that  unless  they 


134  TRIAL  OP  JOHN  H.  SUBBATT. 

connect  the  defendant  with  the  transaction,  the  testimony  will  all  be  thrown 
out. 

Mr.  PiERREPONT.  Of  course ;  but  I  will  say,  that  if  the  counsel  had  notinter- 
rupted  us,  we  would  have  connected  the  prisoner  with  the  transaction,  long  before 
this. 

Mr.  Bradley.  All  I  can  say  is  that  I  interrupted  you  at  the  proper  time. 

The  Court.  The  court  will  exercise  its  jurisaiction  in  this  and  every  other 
case,  as  far  as  possible,  to  elicit  the  truth  of  the  whole  matter.  If  the  prisioner  at 
the  bar  is  not  connected  with  the  transaction,  the  testimony  will  be  ruled  oat. 

By  Mr.  Pibrrbpont  : 

Proceed  now  and  state  what  you  saw  done,  and  what  you  heard  said,  by  John 
Wilkes  Booth,  and  with  whom  he  was  conversing. 

A.  The  first  who  appeared  on  the  scene  was  John  Wilkes  Booth  himself. 
What  first  attracted  my  attention  was  his  conversing  with  a  low,  villanons 
looking  person  at  the  end  of  the  passage. 

Q.  You  mean  by  low,  short  in  stature  ? 

A.  Yes,  sir ;  it  was  but  a  moment  before  another  person  joined  them.  This 
person  was  neat  in  appearance — neatly  dressed — and  entered  in  conversation. 
This  rush  came  down  from  the  dieatre,  and  as  they  were  coming.  Booth 
said  to  this  other  person  that  he  would  come  out  now,  as  I  supposed,  referr- 
ing to  the  President.  They  were  then  standing  facing  the  place  where  the 
President  would  have  to  pass  in  order  to  reach  his  carriage,  and  watching 
eagerly  for  his  appearance.  He  did  not  come.  They  then  hurriedly  had  a 
conversation  together ;  then  one  of  them  went  out  and  examined  the  carriage*  and 
Booth  stepped  into  a  restaurant.  At  this  time  all  the  party  who  had  come  down 
from  the  theatre  had  gone  up.  Booth  remained  there  long  enough  to  take  a  drink. 
I  could  not  say  whether  he  did  or  not.  He  came  around  and  stood  in  the  end 
of  the  passage  from  the  street  to  the  stage  where  the  actors  passed  in.  He  ap- 
peared ill  a  moment  again.  This  third  party,  neatly  dressed,  immediately 
stepped  up  in  front  of  the  theatre  and  called  the  time. 

Q.  To  have  no  misunderstanding,  state  what  you  mean  by  calling  the  time. 

A.  He  stepped  up  and  looked  at  the  clock,  and  called  the  time  to  the  otber 
two. 

Q.  That  is  he  stated  what  it  was  ? 

A.  Yes,  sir. 

Q.  Where  was  the  clock  ? 

A.  The  clock  was  in  the  vestibule  of  the  theatre. 

Q.  State  how  the  light  was  at  the  time  relating  to  the  face  of  the  neatly  dressed 
man  who  called  the  time. 

A.  I  did  not  observe  it  particularly  at  that  time.  As  soon  as  he  called  the 
time  to  the  other  two,  he  went  up  the  street  towards  H  street.  He  did  not 
remain  there  long,  but  came  down  again,  stopped  in  front  of  the  theatre,  looked 
at  the  clock,  and  called  the  time  again,  looking  directly  at  these  two,  and  seemei 
excited. 

Q.  That  is,  Booth  and  the  other  man  ? 

A.  Yes,  sii.  He  then  immediately  turned  his  heel  and  went  towards  H  street 
It  was  then  I  thought  something  was  wrong  by  the  manner  in  which  these  three 
had  been  conducting  themselves,  and  as  a  soldier  I  had  a  revolver  in  my  pocket 
with  my  handkerchief  wrapped  around  it. 

Q.  What  part  of  it? 

A.  Around  the  revolver.  We  wore  artillery  jackets,  and  the  revolver  waei" 
my  breast  pocket.  My  suspicions  were  so  aroused  that  I  unwound  my  handker 
chief  from  around  my  revolver.  It  was  not  long  before  he  appeared  affi^ 
going  on  a  fast  walk  from  the  direction  of  H  street. 

Q.  How  did  he  look  then  1 


TRIAL  OF  JOHN  H.  SURBATT.  135 

A.  He  placed  himself  in  front  of  the  theatre,  where  the  light  shone  clear  on 
his  face.  There  was  a  picture  on  that  countenance  of  great  excitement,  ezceed- 
inglj  nervous  and  very  pale.  He  told  them  for  the  third  time  that  it  was  ten 
minntefl  past  ten  o'clock.  That  is  the  last  time  he  called  it.  It  was  ten  min- 
utes past  ten  o'clock. 

By  Mr.  Bradley  : 

Q.  And  that  was  this  time  ? 
A.  Tes,  sir. 

By  Mr.  PiERRBPONT: 
Q.  Did  you  say  that  the  person  said  three  times  that  it  was  ten  minutes  past 
ten  o'clock  ? 

A  I  said  he  called  the  time  three  times,  and  this  time  it  w§s  ten  minutes  past 
ten  o'clock. 
Q.  And  the  other  periods  of  time  were  hefore  ? 
A.  Yes  sir. 

By  a  Juror  : 
Q.  He  did  not  state  each  time  that  it  was  ten  minutes  past  ten  ? 
A.  No,  sir.    There  were  eight  or  nine,  or  ten  minutes  between  them.     The 
last  time  I  do  not  think  there  were  more  than  five. 

By  Mr.  Pibrrbpont  : 
Q.  Did  you  see  that  man  distinctly  ? 
A.  I  did. 

Q.  Very  distinctly  ? 
A.  I  did  very  distinctly. 
Q.  Do  you  see  him  now  ? 
A.  I  do. 

Q.  Can  you  tell  ua  where  he  is  1 
A.  I  can. 

Q.  Tell  us  where  he  is. 
A.  He  sits  there,  (pointing  to  the  prisoner.) 
Q.  Is  that  the  man  ? 

A.  It  is.    I  have  seen  his  face  often  since,  while  I  have  been  sleeping — it 
was  so  exceedingly  pale.     He  hurried  up  towards  H  street  again,  and  that  is 
tbe  last  I  have  seen  of  him  until  lately. 
Q.  You  say  he  was  the  prisoner  at  the  bar  ? 

A.  Yes,  sir,  and  I  say  that  I  have  seen  him  since,  while  I  have  been  sleeping. 
Q.  Did  it  make  a  very  strong  impression  from  what  occurred  at  the  time  ? 
A.  It  did,  sir. 

Q.  What  did  Booth  do  then  ? 
A.  He  walked  directly  into  the  theatre. 
Q.  Did  yon  call  anybody's  attention  to  this  at  the  time  ? 
A.  I  did. 
Q.  Who? 

A.  Sergeant  Robert  H.  Cooper. 
Q.  Did  yon  point  out  at  the  time  who  Booth  was  ? 
(Question  objected  to  by  Mr.  Bradley  and  withdrawn.) 
Q.  Where  did  Booth  then  go  1 
A.  He  entered  the  front  of  the  theatre. 
Q.  Where  did  you  go,  and  who  went  with  you  ? 

A  Sei^geant  Cooper  and  myself  went  to  an  oyster  saloon.    Sergeant  Cooper 
v«B  particularly  with  me. 
Q.  How  Boon  afker  you  got  into  the  oyster  saloon  did  you  hear  of  the  murder  ? 
A.  We  had  not  time  to  eat  our  oysters. 
Q.  What  did  you  do  when  you  heard  of  it  t 


136  TRIAL   OF   JOHN    H.   SURRATT. 

A.  We  did  not  go  to  the  theatre.  We  hurried  right  up  H  street  to  the  camp. 
I  thought  a  detail  would  have  to  he  made,  and  as  I  was  first  sergeant  I  would 
hkve  to  be  there. 

Q.  Did  Sergeant  Cooper  belong  to  the  same  camp  ? 

A.  He  did. 

Q.  Did  you  both  go  up  H  street  ? 

A.  Yes,  sir,  we  both  went  up  to  H  street,  and  out  H  street. 

Q.  When  you  got  out  to  H  street,  what  did  you  do  ? 

A.  We  passed  out  to  Gamp  Barry. 
■  Q.  What  occurred  on  the  way  ? 

A.  A  lady  hoisted  the  window  of  her  parlor,  and  asked 

(Question  objected  to  by  Mr.  Bradley.) 

Mr.  PiBRREPaxT  stated  that  he  would  not  press  the  question,  and  would  turn 
the  witness  over  to  the  defence  for  cross-examination. 

The  court  thereupon  took  a  recess  until  to-morrow  at  10  a.  m. 

Tuesday,  June  18,  1867. 

The  Court  met  at  10  a.  m. 

Mr.  PiERRBPO.NT  said:  If  your  honor  please,  when  the  court  adjourned  on 
yesterday  I  had  just  put  a  question  to  the  witness  Dye,  touching  what  occoned 
as  he  and  Sergeant  Cooper  hastened  from  the  oyster  Sfdoon  up  H  street,  to  which 
question  the  counsel  for  the  prisoner  objected.  I  withdrew  the  question  for  the  time, 
thinking  then  that  I  would  renew  it  on  the  cross-examination.  I  .have  come  to 
the  conclusion,  however,  that  it  would  be  more  orderly  to  ask  the  question  in 
the  direct,  and  now  propose  to  do  so.  I  will  ask  it  in  such  a  form  that  the 
gentlemen  on  the  other  side  can  take  whatever  exception  to  it  they  see  proper. 
The  witness  will  understand  that  he  is  not  to  answer  until  the  court  has  roled 
upon  it. 

The  question  is  this  : 

Q.  You  stated  yesterday  that  you  and  Sergeant  Cooper  hastened  up  H  street 
What  did  you  and  Sergeant  Cooper  see  as  you  hastened  up  H  street  ? 

(Mr.  Bradley  objected  to  the  question  as  irrelevant.) 

Mr.  PiBRRBPO.XT.  We  suppose,  may  it  please  your  honor,  that  all  the  inci- 
dents and  facts  that  transpired  at  the  time  of  (he  murder  are  proper.  We 
suppose  that  a  signal-light  is  proper;  we  suppose  that  a  signal-whistle  is  proper. 
Such  have  always  been  allowea  to  be  given  in  evidence.  We  do  not  suppose 
it  is  necessary  to  prove  that  the  prisoner  gave  the  signal-whistle,  or  that  the 
signal-light  was  displayed  by  him.  I  repeat  it  is  our  opinion  that  all  the 
incidents  connected  with  a  murder  of  this  kind  are  proper  to  be  given  in  evidence, 
as  having  a  tendency  to  throw  light  upon  the  question  being  inquired  into. 

The  Court.  It  is  very  difficult  for  the  court  to  determine  at  this  stage,  with- 
out knowing  what  the  evidence  is,  whether  it  is  relevant  and  admissible.  I 
propose,  therefore,  to  let  the  answer  be  given,  and  then  if  it  be  found  to  in  aoj 
way  connect  the  prisoner  with  the  transaction — the  taking  away  of  the  life  w 
Abraham  Lincoln — it  will  be  regarded  as  proper  evidence.  If  not,  it  will  be 
ruled  out. 

To  this  ruling  Mr.  Bradley  reserved  an  exception. 

Examination  of  Joseph  M.  Dye  resumed. 
By  Mr.  Pierrepont  : 

Q.  Plea.'^e  state  what  occurred  sa  you  and  Sergeant  Cooper  hastened  up  S 
street. 

A.  As  we  were  passing  along  H  street  out  to  Camp  Barry,  a  lady  hoisted  » 
window  and  asked  us  what  was  wrong  down  town. 

Q.  What  did  you  say,  and  what  did  she  reply  ? 

I  told  her  that  President  Lincoln  was  shot.     She  asked  mc  who  did  it* 


TRIAL   OP   JOHN   H.   SURRATT.  137 

I  told  ber  Booth.     She  asked  me  how  I  knew  it.     I  told  her  a  man  saw  him 
"who  knew  him. 

Q.  Will  70a  tell  ns  what  was  the  condition  of  the  moon  at  that  time?    • 

A.  I  cannot  say  exactly.     I  disremember. 

Q.  Do  you  know  whether  it  was  full  or  different  at  the  time  ?  ' 

A.  It  was  light  enough  for  us  to  see  some  distance  on  the  street. 

Q.  Do  you  luiow  whether  the  moon  was  up  ? 

A.  Yes,  sir ;  I  believe  it  was. 

Q.  Do  you  know  whether  the  moon  was  then  at  or  about  the  full  ? 
A.  I  cannot  say. 
*  Mt.Bbadlby  here  interposed  an  objection  to  the  course  of  examination  being 
ponoed.   The  witness  had  answered  that  he  did  not  recollect  what  the  condition 
of  the  moon  was,  and  he  did  not  think  it  altogether  proper  to  pursue  this  line 
of  examination  further  with  leading  questions. 

Mr.  PiBRRBPONT.   Very  well,  sir;  I  will  not  press  the  examination  further. 
The  ahnanac  will  show  what  the  condition  of  the  moon  was  on  that  night. 

Q.  Please  describe  this  woman  who  opened  the  window,  and  with  whom  you 
W  this  conversation. 

A.  She  appeared  to  be  an  elderly  lady. 

Q.  How  was  she  as  to  being  stout  or  otherwise  ? 

A.  I  could  not  say  particukurly.  8he  resembled  the  lady  on  the  trial  of  the 
Mipintors — Mrs.  Surratt. 

Q.  Have  you  seen  the  house  since  7 

llhave. 

Q.  Do  you  know  the  number  ? 

A I  do— 541. 

•Q.  Tell  the  jury  which  side  of  the  street  it  is  on  as  you  go  up. 

A.  As  you  go  towards  the  camp — an  easterly  direction — ^it  is  on  the  right- 
knd  side. 

Q.  Is  there  anything  peculiar  ab^ut  the  house  ? 

A.  Yes,  sir.    I  recollect  the  steps  distinctly  as  they  appeared  that  night. 

Q.  Tell  the  jury  how  the  steps  are. 

A.  In  order  to  answer  her  question  I  had  to  go  up  in  the  direction  of  the 
te,  which  are  very  tall. 

'Q.  Will  yon  state  what  was  the  manner  of  this  woman  when  she  thus  ad- 
Medyoal 

A.  She  just  asked  the  question. 

Q.  State  whether  her  manner  was  excited  or  not. 

A.  I  do  not  recollect. 

(ii  What  then  did  you  do  ? 

A.  Passed  on  out  towards  the  camp. 

Q.  Did  you  pass  swiftly  or  slowly  1 

A.  Passed  along  as  on  a  fast  walk. 

Q.  At  the  time  she  opened  the  window,  state  whether  anybody  was  ahead  of 
J^  in  the  street. 

A.  There  was  not.  We  met  two  policemen  a  short  distance  beyond  that, 
^  kad  not  even  heard  of  the  assassination.  What  I  mean  by  that  is,  that  no 
fcdestrians  had  passed  that  way. 

Q.  When  you  saw  Booth  and  Surratt  at  the  theatre,  just  before  this  occur- 
woce  which  you  have  now  described,  was  Booth  disguised  ? 

A.  No,  sir.    He  had  a  slouched  hat  on. 

Qp^Was  Surratt  disguised  ? 

-A.  No,  sir. 

Q.  Was  the  short  man  who  was  with  him  disguised  ? 

I     A.  No,  sir.    He  was  a  villanous,  rough-looking  character, 
in 


138  TRIAL  OF  JOHN  H.  SURRATT. 

Q.  I  mean  as  to  tlie  disguise  of  their  dress.    Was  the  dress  of  any  of  them 
disguised  1 
A.  No,  sir. 

Gross-examination : 
By  Mr.  Merrick  : 

Q.  What  is  your  age  ? 

A.  I  will  be  twenty-three  next  Angast. 

Q.  Where  are  you  from  1 

A.  From  Washington,  Washington  county,  Pennsylvania. 

Q.  What  was  your  business  in  Washington  before  you  entered  the  army  ? 

A.  I  was  going  to  school,  and  in  a  printing  office  before  that  time.  Wash- 
ington is  where  I  went  to  school. 

Q.  Did  you  go  to  Washington  College  ? 

A.  No,  sir.     I  went  to  what  is  called  Union  School,  just  opposite  the  college. 

Q.  When  did  you  leave  that  school  1 

A.  About  a  year  before  I  entered  the  army  ? 

Q.  What  year  was  that  ? 

A.  1862. 

Q.  Then  you  left  the  school  in  1861  ? 

A.  Yes,  sir ;  between  I860  and  1861-  I  do  not  exactly  remember  what  time 
it  was. 

Q.  Did  you  leave  the  school  for  the  purpose  of  going  into  the  army  ? 

A.  No,  sir.  I  left  the  school  to  go  with  Adam  H.  Ecker,  the  editor  of  a 
paper  there,  called  the  Washington  Examiner. 

Q.  How  long  did  you  remain  with  him  before  you  went  into  the  army  ? 

A.  A  year  and  a  couple  of  months,  I  believe ;  somewhere  in  that  neighbor- 
hood. 

Q.  What  was  your  business  in  connection  with  the  paper  ? 

A.  I  set  up  editorials  and  such  things  as  that. 

Mr.  PiERRBPONT.  We  do  not  wish  to  object  to  any  reasonable  latitude ;  but 
does  your  honor  think  it  can  possibly  favor  public  justice  to  go  into  the  question 
as  to  whether  a  man  wrote,  or  set  type,  or  did  something  else  1  If  your  honor 
thinks  so,  why,  of  course,  I  do  not  want  to  object. 

The  Court,  I  cannot  see  that  it  is  of  any  great  advantage  either  one  way  or 
the  other;  nevertheless,  it  is  responsive  to  the  preliminary  question  that  was  pnt 
to  all  these  witnesses,  as  to  their  age,  residence,  occupation,  &c. 

Mr.  Pierrlpont.  All  I  desire  is,  to  suggest  that  there  be  some  reasonable 
limit  to  such  examination. 

Mr.  Merrick.  I  understand  the  limit  to  a  cross-examination  to  be  the  daguerre- 
otyping  of  the  witness,  as  far  as  possible,  to  the  jury. 

The  Court.  You  will  proceed  with  the  examination. 

By  Mr.  Merrick  ; 
Q.  Your  business  was  setting  up  editorials  1 
A.  Yes,  sir,  and  locals,  and  such  things. 
Q.  Did  you  wrile'for  the  paper  1 
A.  No,  sir. 

Q.  I  understand  you  to  say  that  on  the  14th  of  April,  1865,  you  were  sta- 
tioned at  Camp  Barry  ] 
A.  Yes,  sir. 

Q.  And  that,  on  that  night,  you  came  into  town  ? 
A.  Yes,  sir ;  on  that  afternoon. 
Q.  What  time  in  the  afternoon  did  you  come  in  ? 
A.  In  the  evening,  just  before  dusk. 
Q.  What  time  did  you  have  tattoo  at  your  camp  ? 


TRIAL  OF  JOHN  H.   SURRATT.  139 

A.  About  nine  o'clock. 
Q.  I  suppose  you  were  not  there  at  tattoo  ? 
A.  No,  sir. 

Q.  What  was  your  position  in  the  camp  ? 
A.  I  was  first  sergeant. 
Q.  Of  your  company  ? 
A.  Yes,  sir. 

Q.  Who  called  your  roll  for  you  at  tattoo  ? 
A.  The  first  duty  line  sergeant  generally. 
Q.  Did  you  have  permission  to  go  into  town  ? 
A.  I  generally  came  into  town  whenever  I  felt  like  it. 
Q.  That  was  your  habit  ? 

A.  I  was  quartermaster  before,  and  had  a  monthly  pass.     That  pass,  I  be- 
lieve, was  not  then  quite  out  of  date. 
Q.  I  understood  you  to  say,  yesterday,  that  your  pass  was  out  of  date? 
A.  I  do  not  think  it  was ;  but  I  could  not  properly  use  it.     I  should  have 
banded  it  to  the  captain. 
Q.  What  did  you  mean,  then,  by  saying  that  your  pass  was  out  of  date  ? 
A.  Out  of  date  to  me,  because  I  had  no  right  to  use  it. 
Q.  Why  had  you  not  a  right  to  use  it,  if  it  was  within  date  1 
A.  Because  I  was  promoted  from  quartermaster  to  first  sergeant,  and  should, 
therefore,  have  handed  it  in.    My  duty  as  quartermaster  brought  me  into  town 
every  day,  as  a  general  thing,  for  rations  and  such  things  as  that. 

Q.  Do  I  understand  you  to  say  that  it  was  your  habiit,  as  first  sergeant,  to 
come  into  town  every  day,  or  as  quartermaster! 
A.  As  quartermaster. 
Q.  What  was  your  habit  as  first  sergeant  t 
A.  I  generally  came  into  town  two  or  three  times  a  week. 
Q.  Did  you  get*any  jpermission  to  come? 

A.  Yes,  sir,  often.    Our  captain  was  not  very  strict ;  he  relied  upon  his  men 
to  do  their  daty. 
Q.  He  reliecl  upon  the  honor  and  integrity  of  his  men  ? 
A.  Yes,  sir. 

Q.  Did  you  feel  that  you  were  acting  worthy  of  that  confidence  reposed  in 
you  by  your  commanding  officer,  in  coming  into  town,  and  remaining  in  after 
tattoo,  without  permission  ? 
A.  No,  sir. 

Q.  What  did  you  come  into  town  for  that  night  1 
A.  To  see  the  torchlight  procession. 
Q.  What  did  you  go  to  the  theatre  for  ? 
A.  Because  I  ascertained  the  President  was  to  be  there. 
Q.  Did  you  buy  a  ticket  ? 
A.  No,  sir. 

Q.  You  did  not,  then,  go  inside  of  the  theatre  ? 
A.  No,  sir;  I  did  not. 

Q.  I  understood  you  to  say  yesterday  that  you  took  a  seat  on  some  planks 
tbat  were  there  ? 

A  Yes,  sir,  on  a  platform.    I  do  not  know  whether  it  was  composed  of  planks 
or  Qot,  but  I  presume  it  was.     It  was  a  platform  on  which  they  got  in  and  out 
o^the  carriages. 
Q.  You  took  your  seat  on  that  platform  ? 
A.  Yes,  sir;  with  my  feet  resting  on  the  pavement. 
Q.  At  what  hour  was  that  ? 
A.  About  nine  and  a  half  o'clock. 
Q.  How  long  did  you  remain  there  ? 
A.  Until  ten  minutes  past  ten — a  couple  of  minutes  after  that. 


140  TRIAL   OF  JOHN  H.   SUBBATT. 

Q.  Did  you  go  into  the  drinking  saloon  ? 

A.  No,  sir. 

Q.  Did  not  you  take  a  drink  while  you  were  there  ? 

A.  No,  sir. 

Q.  Did  you  remain  seated  on  those  planks  all  the  while  you  were  there  ? 

A.  I  did.     I  took  my  seat  there  and  remained  there  until  I  left  the  place. 

Q.  Did  Sergeant  Cooper  stay  there  beside  you  ? 

A.  No,  sir.    He  walked  up  and  down  the  pavement. 

Q.  When  and  to  whom  did  you  first  communicate  what  you  observed  on  that 
night  ? 

A.  I  believe  I  first  observed  it  to  my  father. 

Q.  To  whom  next? 

A.  No  person  in  particular.     I  spoke  of  it  in  general  conversation ;  (after  a 
pause,)  Oh,  do  you  mean  my  suspicions  on  that  night  1 

Mr.  Merrick.  Yes,  sir. 

Witness.   To  Sergeant  Cooper. 

Q.  Who  did  you  first  tell  what  you  could  prove  as  to  what  occurred  on  that  night  ? 

A.  I  did  not  tell  any  person  any  such  thing  as  that;  I  only  told  them  what 
I  had  seen.     The  first  thing  I  knew  I  was  summoned  in  town  here. 

Q.  When  was  that  ? 

A.  That  was  just  before  the  trial  at  the  arsenal. 

Q.  Who  did  you  see  when  you  came  here  after  being  summoned  1 

A.  I  went  down  to  the  provost  marshal's  office,  and  from  there  to  the  old 
capitol  prison. 

Q.  Were  you  put  in  the  old  capitol  prison  ? 

A.  No,  sir,  not  so  bad  as  that. 

Mr.  Merrick  :  You  may  thank  your  fortune  for  not  being  court  martialcd 
for  being  out  after  tattoo  ? 

Witness:  But  discretion  is  the  better  part  of  valor  sometimes. 

Q.  Who  did  you  see  at  the  provost  marshal's  office  ? 

A.  I  saw  several  gentlemen  there. 

Q.  Who  talked  with  you  there  particularly  about  what  occurred  on  the  night 
of  the  14th  of  April  ? 

A.  The  officer  who  was  on  duty. 

Q.  Who  was  he  ? 

A.  He  was  a  colonel.     I  do  not  know  what  his  name  was. 

Q.  What  were  you  sent  up  to  the  old  capitol  prison  for  ? 

A.  To  see  if  I  recognized  the  villanous  looking  person,  or  any  of  the  parties 
in  front  of  the  theatre. 

Q.  Were  you  ever  examined  by  any  one  before  you  testified  at  the  military 
commission  ? 

A.  No,  sir ;  some  questions  were  asked  me  at  the  provost  marshal's. 

Q.  Was  that  the  only  time  any  questions  were  asked  you  by  any  officer  or 
person  in  authority  ? 

A.  To  the  best  of  my  knowledge  it  was. 
By  Mr.  Bradley  : 

Q.  And  that  was  by  the  colonel  ? 
A.  By  the  officer  there ;  I  believe  he  was  a  colonel. 
Q.  Had  he  not  a  uniform  on  ? 
A.  His  coat,  I  believe,  was  not  a  uniform  one. 
Q.  What  rank  had  he  on  his  shoulder  1 

A.  He  had  a  military  blouse  on.    To  the  best  of  my  knowledge  he  was  a 
colonel.    I  heard  him  addressed  as  colonel.     Whether  he  was  only  a  lieutenant 
colonel  or  a  full  colonel  I  do  not  know. 
By  Mr.  Merrick  : 
Were  any  photographB  shown  yon  at  the  provost  marshal's  office  t 


i 


TRIAL   OF   JOHN   H.  SURRATT.  141 

A."  No,  sir. 

Q.  Pid  you  see  any  there  ? 

A.  No,  sir ;  they  were  busy  sending  out  for  different  persons  in  town.  There 
was  a  coat  brought  in  then,  I  remember. 

Q.  Were  any  photographs  shown  you  before  you  testified  at  the  trial  before 
the  military  commission  ? 

A.  There  was  not. 

Q.  When  did  you  arrive  in  town  1 

A.  Last  Monday  a  week. 

Q.  When  were  you  here  last  before  that  ? 

A.  I  was  here  the  10th. 

Q.  Before  the  10th,  when  were  you  here  ? 

A.  I  was  here  in  March,  I  believe. 

The  Court.  The  10th  of  what? 

Witness.  When  the  court  met  before  and  the  case  was  postponed. 

Q.  Were  you  here  in  March  ? 

A.  Yes,  sir ;  I  believe  it  was  March.     I  am  confident  it  was  March. 

Q.  Who  did  you  talk  with  when  you  came  here  last  about  your  testimony, 
on  the  10th  of  March,  as  you  say  ? 

A.  I  talked  with  General  Carrington. 

Q.  Any  one  else  ? 

A.  Mr.  Wilson,  sometimes. 

Q.  Any  one  else  ? 

A.  No,  sir. 

Q.  Sergeant,  in  looking  over  your  testimony  of  yesterday,  I  observe  that 
you  give  quite  a  succinct  narrative  of  what  transpired  on  the  night  of  the  14th 
of  April ;  mention  the  name  of  Booth ;  speak  of  a  villanous-looking  person, 
and  then  speak  of  a  third  party  neatly  dressed.  You  describe  the  latter  through- 
out as  the  "  third  party  neatly  dressed."  Can  you  give  any  reason  to  the  jury 
why  you  did  not  mention  his  name  in  the  first  instance  1    You  knew  who  he  was. 

A.  I  did  not  think  it  was  necessary  until  I  was  called  upon  to  point  him  out. 

Q.  You  knew  his  name  ? 

A.  I  knew  his  name  after  I  had  seen  him. 

Q.  You  knew  his  name  when  you  took  the  stand  yesterday  ? 

A.  I  did. 

Q.  Why,  then,  did  you  not  use  his  name  instead  of  referring  to  him  as  the 
"  third  party  neatly  dressed  1 " 

A.  I^cause  I  did  not  think  it  was  necessary  until  I  was  called  upon  to  point 
him  out. 

Q.  Did  you  think  it  was  necessary  to  use  Booth's  name  ? 

A.  I  used  it  just  because  I  deemed  it  necessary  in  my  own  mind. 

Q.  Why  did  you  deem  it  necessary  in  your  own  mind  to  use  one  name  and 
not  to  use  another  ? 

A.  J  did  not  think  it  was  necessary  to  use  the  other  name  until  I  was  called 
upon  to  identify  him. 

Q.  Were  you  not  told  not  to  use  his  name  ? 

A.  No,  sir;  I  was  not. 

Q.  Please  tell  us  what  was  the  position  of  these  three  men  when  you  first 
observed  them  ? 

A.  Just  as  I  gave  it  yesterday;  Booth  was  speaking  to  this  rough,  villanous- 
looking  person,  and  just  then  this  third  party  appeared. 

Q.  How  long  was  that  after  you  had  taken  your  seat  upon  the  planks  ? 

A.  Very  soon. 

Q.  Five  or  ten  minutes  ? 

A.  No,  sir,  not  that  long.  * 


142  TRIAL  OF  JOHN  H.  8UBRATT. 

Q.  Tell  the  jury  where  Booth  and  this  villanous -looking  person  were  stand- 
ing when  you  first  observed  them. 

A.  Below   the   door   next  to   Pennsylvania  avenuo,  just  at  the   entrance 
between  the  saloon  and  the  door  of  the  theatre  where  you  enter  the  vestibule. 

Q.  How  far  from  the  wall  of  the  building  ? 

A.  Close  to  it. 

Q.  How  wide  is  the  sidewalk  ? 

A.  I  presume  some  fourteen  feet. 

Q.  Where  did  this  neatly-dressed  third  party  come  from  when  he  joined  the 
two? 

A.  I  cannot  say. 

Q.  From  which  side  did  he  approach  them  ? 

A.  I  do  not  know.     I  did  not  see  him  until  he  was  right  in  with  them. 

Q.  How  long  did  they  stand  there  together  ? 

A.  For  some  time. 

Q.  About  how  long  1 

A.  Until  that  man  began  to  call  the  time. 

Q.  How  long  about  did  they  stand  there  ? 

A.  I  presume  they  were  all  three  of  them  together  there  about  ten  or  twelve 
minutes. 

Q.  At  that  time  ? 

A.  They  were  never  together  afterwards — all  three  of  them. 

Q.  I  want  to  know  how  long  they  remained  there  together  conversing  ? 

A.  Well,  I  suppose  ten  or  twelve  minutes.  It  might  not  have  been  that 
long. 

Q.  Did  they  talk  loud  enough  to  be  overheard  ? 

A.  No,  sir ;  only  Booth  in  using  the  expression  to  which  I  have  referred. 

Q.  Did  they  speak  in  a  whisper  ? 

A.  They  did. 

Q.  Was  the  expression  you  speak  of  made  use  of  by  Booth  while  the  three 
were  standing  there  together  1 

A.  Yes,  sir. 

Q.  Was  it  made  before  any  one  of  them  had  examined  the  carriage  ? 

A.  Yes,  sir. 

Q.  Thea,  as  J  understand  you,  you  now  tell  the  jury  the  two  were  talking 
together  when  the  third  joined  them ;  and  that  that  was  the  first  time  you 
observed  them,  and  that  the  three  remained  together  ten  or  twelve  minutes  ? 

A.  Yes,  sir. 

Q.  All  you  heard  was  the  exclamation  of  Booth,  "  He  will  come  out  now." 

A.  Yes,  sir. 

Q.  And  that  up  to  that  time  nothing  else  had  occurred  except  their  being 
together  and  talking  ? 

A.  No,  sir. 

Q.  When  Booth  made  this  remark  what  did  they  do  ? 

A.  The  rush  was  then  coming  down. 

Q.  Let  us  have  the  remark. 

A.  "  I  think  he  will  come  out  now." 

Q.  What  did  they  then  do  ? 

A.  They  lined  themselves  below  the  door ;  that  is,  towards  Pennsylvanui 
avenue.  They  were  below  the  door  facing  the  space  the  President  would  have 
to  nass  in,  in  order  to  reach  his  carriage. 

Q.  They  were  then  below  the  door,  towards  Pennsylvania  avenue,  firontmg 
F  street? 

A.  Yes,  sir ;  looking  up  in  that  direction — just  facing  the  passage  from  the 
door  to  the  carriage. 

Q.  You  were  still  occupying  your  seat  ? 


TRIAL   OF  JOHN   H.  8URBATT.  143 

A.  I  was. 

Q.  In  what  order  did  they  stand  ? 

A.  They  stood  facing  that  space. 

Q.  Who  stood  nearest  the  theatre. 

A.  The  villain. 

Q.  Who  stood  next  ? 

A.  I  do  not  recollect ;  I  think,  thongh,  it  was  Booth. 

Q.  Who  stood  next  t 

A.  The  third  party — John  H.  Surratt. 

Q.  You  cannot  be  mistaken  in  what  yon  have  said  about  their  position  ? 

A.  Not  at  all. 

Q.  I  understood  you  to  eay  yesterday,  that  when  Booth  said,  **  I  suppose 
he  will  come  out  now,"  you  supposed  him  to  refer  to  the  President  ? 

A.  Yes,  sir. 

Q.  Why  did  you  suppose  so  ? 

A.  Well,  I  presum^  bo.  I  was  not  any  ways  excited  then  myself,  and  I 
thought  they  were  speaking  just  as  other  persons  would  who  were  anxious  to 
Bee  him. 

Q.  You  had,  however,  observed  them,  had  you  not  t 

A.  Yes,  sir ;  particularly  on  account  of  Booth  holding  conference  with  that 
villain. 

Q.  That  was  what  first  attracted  your  attention  t 

A.  Yes,  sir. 

Q.  To  see  a  gentleman  talking  with  so  villanous-looking  a  man  ? 

A.  Yes,  sir. 

Q.  Did  you  also  observe  them  particularly  when  they  were  lined  ? 

A.  I  saw  them  in  their  positions.  Some  of  the  parties  coming  down  out  of 
the  theatre  passed  between  some  of  them. 

Q.  After  you  got  them  into  line,  what  occurred  next  f 

A.  President  Lincoln  had  not  i^peared,  and  these  parties  who  came  down 
after  a  drin^,  went  up  again. 

Q.  What  did  the  three  men  do  ? 

A.  Booth  stepped  into  the  saloon  adjoining  the  theatre  in  the  direction  of 
Pennsylvania  avenue. 

Q.  Wliat  did  the  villanous-lookiog  man  do? 

A.  He  remained  in  position  near  the  passage. 

Q.  In  or  out  of  the  theatre  ? 

A.  Out  of  the  theatre,  right  against  the  wall.  He  never  changed  his  posi- 
tion while  I  observed  him. 

Q.  What  did  the  man  you  called  Surratt  do  t 

A.  He  walked  out  and  looked  at  the  carriage  in  the  rear. 

Q.  Did  he  walk  around  the  carriage  t 

A.  He  went  into  the  rear  of  it,  and  nearly  stumbled  over  my  foot  as  he  was 
passing  me. 

Q.  What  did  he  do  then  ? 

A.  He  came  back  again.  Booth  in  the  mean  time  had  come  out  of  the  sa- 
loon, and  stepped  into  the  passage.  Surratt  then  joined  them,  and  as  Booth 
appeared  from  the  passage,  Surratt  stepped  up  to  the  clock  and  called  the  time. 

Q.  Where  was  that  clock  ? 

A.  In  the  vestibule  of  the  theatre,  opposite  the  door. 

Q.  Whereabouts  in  that  vestibule  ? 

A.  I  cannot  exactly  describe  that.  I  know  the  clock  was  there,  that  is  all. 
I  think  it  was  right  above  the  **  delivery  of  tickets,'*  if  I  am  not  mistaken. 

Q.  Did  yon  see  it? 

A.  I  have  seen  it    I  could  not  see  it  just  exactly  as  I  sat  then. 

Q.  Was  not  the  clock  right  opposite  uiQ  door  ? 


144  TRIAL  OP  JOHN  H.  8UERATT. 

A.  Tt  was  as  you  went  in  the  vestibule. 

Q.  There  is  a  door  that  leads  into  the  vestibule  ? 

A.  Certainly. 

Q.  You  walk  into  the  vestibule  and  then  see  the  clock  right  in  front  of  you  ? 

A.  Yes,  sir. 

Q.  This  man  whom  you  call  Surratt,  you  say,  stepped  up  to  the  door  and 
looked  at  the  clock  ? 

A.  Yes,  sir ;  and  called  the  time. 

Q.  What  did  he  do  then  ? 

A.  He  walked  up  towards  H  street. 

Q.  The  villanous  fellow  still  retained  his  position  1 

A.  Yes,  sir. 

Q.  What  did  Booth  do  ? 

A.  He  stood  in  conversation  with  him. 

Q.  How  long  a  time  passed  from  the  time  when  they  lined  themselves  oppo- 
site the  space  where  the  President  was  to  pass,  and  the  time  this  man  called  the 
time? 

A.  About  five  minutes. 

Q.  They  then  lined  themselves,  and  this  man  Surratt  examined  the  carriage  ? 

A.  Yes,  sir. 

Q.  He  went  up  and  joined  Booth  when  he  returned  from  the  passage,  and 
that  occupied  five  minutes  1 

A.  Yes,  sir. 

Q.  He  then  went  up  the  street  ? 

A.  He  did. 

Q.  And  Booth  remained  talking  with  the  villanous-looking  man  1 

A.  He  did. 

Q.  How  long  was  it  before  this  man  whom  you  call  Surratt  returned  ? 

A.  It  was  very  soon.  I  cannot  state  the  time  exactly.  It  might  have  been 
some  five  or  ten  minutes.     I  think  it  was  at  least  five  minutes. 

Q.  Did  he  go  up  the  street,  or  did  he  go  in  the  alley-way  that  leads  back 
into  the  theatre  ? 

A.  No,  sir;  he  went  up  the  street. 

Q.  He  then  returned? 

A.  Yes,  sir. 

Q.  What  did  he  do  when  he  came  back  ? 

A.  He  immediately  stepped  in  front  of  the  theatre  again,  and  looking  in  the 
vestibule  called  the  time  to  those  two. 

Q.  Where  were  those  two  standing? 

A.  In  the  same  position,  just  below  the  door  towards  Pennsylvania  avenue. 

Q.  What  did  he  do  after  he  called  the  time  ? 

A.  Turned  on  his  heel  and  started  up  the  street  again. 

Q.  Did  he  speak  to  them  ? 

A.  He  just  directed  the  time  to  them.  He  was  very  much  excited.  That 
was  the  first  time  my  suspicions  were  aroused  of  there  being  anything  wrong— 
the  manner  of  those  two  conversing  there,  and  his  coming  down  again  and  caJl- 
ing  the  time  to  them. 

Q.  In  what  manner  did  he  attract  their  attention  ? 

A.  The  moment  he  appeared  they  observed  him,  and  he  hallooed  the  time  to 
them. 

Q.  How  do  you  know  they  observed  him  ? 

A.  They  looked  at  him. 

Q,  Did  he  look  at  them  ? 

A.  He  did. 

Q.  Did  he  sneak  to  them  ? 

A.  He  called  the  time  to  them. 


TRIAL   OP  JOHN  H.   8UBRATT.  145 

Q.  Did  he  address  them? 

A.  He  could  not,  from  where  he  stood,  without  having  his  private  matters 
heard. 

Q.  That  is  your  conjecture  ? 

A.  That  is  my  conjecture,  and  my  conjecture,  I  believe,  is  right.     I  have  not 
the  least  doubt  of  it. 
Q.  He  did  not,  however,  in  point  of  fact,  address  them  ? 
A.  He  just  told  them  the  time  in  a  very  excited  manner. 
Q.  And  you  said  he  could  not  address  them  because  their  private  matters 
would  thereby  be  revealed  ? 

A.  He  could  not  address  them  unless  he  wanted  to  be  heard  by  persons 
all  around  them.  Men  engaged  in  such  plots  are  generally  disposed  to  be  a  little 
smarter  than  that. 

Q.  Did  it  never  strike  you  that  it  would  have  been  more  consistent,  if  he 
was  engaged  in  a  plot  like  that,  for  him  to  have  looked  at  the  time  and  whis- 
pered it  to  them  ? 

A.  I  think  there  was  something  up  H  street  that  attracted  his  attention  as 
soon  as  he  called  the  time  to  them.     He  may  have  been  conferring  with  Payne, 
at  H  street,  for  all  I  know. 
Q.  Don't  you  think  it  likely  he  was  ? 
A.  I  do  not  know;  I  have  my  own  conclusions. 

Q.  Then  you  account  for  his  failure  to  carry  out  what  would  have  been  the 
ordinary  course  of  a  man  in  a  plot  of  that  kind — that  is,  to  have  looked  at  the 
time  and  whispered  it— -on  the  ground  that  there  was  something  up  H  street  that 
attracted  his  attention  ? 
A.  That  is  why  he  hurried  up  there. 

Q.  Is  that  the  reason  why  be  called  out  the  time  in  a  loud  voice  ? 
A.  I  believe  he  was  regulating  the  time  for  Booth,  Payne,  and  the  whole  of 
them  to  strike. 
Q.  He  was  a  general  commander  1 
A.  Yes,  sir. 

Q.  Did  you  dream  that  1 
A.  No,  sir. 

Q.  If  he  was  regulating  the  time  for  all  these  men,  who  else  was  there  within 
the  scope  of  your  observation  who  could  hear  him  call  the  time  ? 
A.  No  one  else. 

Q.  How  far  is  it  from  the  theatre  up  to  H  street  ? 

A.  Two  blocks,  I  believe.     He  just  had  time,  in  my  estimation,  to  walk  up 
there  in  a  rapid  manner  and  get  right  back  again  in  time  to  call  the  last  time. 
Q.  Did  you  see  him  when  he  went  across  F  street  ? 
A.  No,  sir ;  I  could  not. 
Q.  It  was  moon-light,  wasn't  it  ? 

A.  The  light  was  there  right  in  front  of  the  theatre,  and  it  kind  of  blinded 
one  in  looking  up  in  that  direction. 

Q.  There  is  one  point  in  regard  to  which  I  don't  distinctly  understand  you, 
and  I  desire  to  do  so.  I  asked  you  whether  it  was  not  more  consistent  that  he 
should  have  looked  at  the  time,  and  gone  and  whispered  to  these  men,  than  to 
liave  hallooed  out  ?  You  say  you  think  it  was  because  he  was  regulating  time 
for  some  persons  up  H  street. 
A.  That  is  my  opinion. 

Q.  How  did  his  calling  out  the  time  so  that  other  people  could  hear  it,  help 
to  regalate  the  operations  pn  H  street  ? 
A.  They  could  not  hear  it  on  H  street. 
Q.  What  did  he  call  it  for,  then  ? 

A     V U 4,U 


146  TRIAL   OF  JOHN   H.   SURRATT. 

Q.  But  yon  say  that  it  would  have  been  more  natural  that  he  should  have 
whispered  it  ? 

A.  I  said  that,  did  I  ?  He  appeared  to  be  in  a  very  great  hurry,  and  hadn't 
time  to  whisper.  He  did  not  take  time  to  go  right  to  them,  but  stood  there  and 
hallooed  it. 

Q.  And  then  hurried  up  in  the  direction  of  H  street  ? 

A.  Yes,  sir ;  I  cannot  say  that  he  went  clear  up  to  H  street,  but  I  know  it 
just  took  him  as  much  time  as  would  be  required  to  walk  those  two  blocks  and 
back  again  in  a  rapid  manner. 

Q.  He  was  a  neatly  dressed  gentleman  ? 

A.  He  was. 

Q.  Most  gentlemen  who  are  dressed  as  neatly  as  you  say  he  was  carry  a 
watch,  do  they  not  ? 

A.  I  have  seen  cases  where  they  did  not. 

Q.  Don't  you  think  that  a  conspirator,  moving  upon  time  land  seconds,  would 
be  likely  to  carry  a  watch  for  the  occasion  ? 

Mr.  PiERRBPONT  interposed  an  objection  to  the  present  line  of  examination. 
It  was  not  the  opinions,  but  the  facts  within  the  knowledge  of  the  witness,  that 
were  wanted. 

Mr.  Merrick  stated  that  the  witness  had  given  an  opinion,  and  he  thought 
it  but  fair  to  show  how  that  opinion  arose — its  absurdity,  and  the  bias  that  in- 
duced it.  However,  he  would  not  pursue  the  examination  on  that  point  any 
further. 

Q.  He  did  not  speak  to  them  ? 

A.  He  just  spoke  the  time,  and  then  hurried  up  towards  H  street. 

Q.  How  long  a  time  elapsed  from  the  time  of  his  appearance  until  the  time 
of  his  disappearance  on  this  second  occasion  ? 

A.  At  the  rate  he  was  going,  which  was  very  fast,  just  about  the  time  that 
it  would  have  taken  him  to  have  walked  from  there  to  H  street. 

Q.  Five  minutes  ? 

A.  Well,  you  can  judge  of  the  time  it  takes  to  walk  two  blocks  as  well  as  I 
can.     He  was  walking  as  fast  as  he  could  walk. 

Q.  You  say  your  suspicions  were  very  strongly  excited  ? 

A.  They  were  at  that  time. 

Q.  Was  it  then  that  you  undid  your  handkerchief  from  around  your  pistol  ? 

A.  It  was  at  the  time  of  the  second  calling  that  I  undid  my  handkerchief 
from  around  my  pistol. 

Q.  What  did  the  other  two  do  after  he  left  there,  subsequent  to  the  second 
calling  of  the  time  ? 

A.  They  remained  there. 

Q.  In  the  same  position  ? 

A.  Yes,  sir,  and  in  deep  conversation. 

Q.  How  long  a  time  elapsed  before  he  came  again  upon  the  scene  ? 

A.  I  believe  it  was  not  as  long  as  before. 

Q.  What  then  occurred  ? 

A.  He  then  called  ten  minutes  past  ten  o'clock. 

Q.  Where  was  he  ? 

A.  Just  where  the  light  &om  the  vestibule  shone  plain  on  his  face. 

Q.  Was  there  anybody  else  about  there  at  that  time  ? 

A.  Sergeant  Cooper. 

Q.  Anybody  else  1 

A.  Yes,  sir ;  some  others,  but  I  can't  recollect  how  many.  I  was  paying 
very  strict  attention  to  those  movements. 

Q.  When  he  called  the  time  the  third  time,  did  he  stand  in  the  same  rebuild . 
position  to  these  men  and  the  door  as  when  he  called  the  second  time  1 

A.  Just  about  the  same ;  but  this  time  he  was  very  nervous  and  excited,  and 


TBIAL  OF  JOHN  H.   SUBRATT.  147 

looked  directly  in  the  face  of  Booth.  My  Buspicions  were  eo  aroused  that  I 
observed  him  very  closely — even  the  movements  of  his  lips,  which  were  thin 
and  pale.  It  was  that  face  in  that  order  that  1  afterwards  saw  in  my 
dreams. 

Q.  How  far  was  he  from  Booth  ? 

A.  About  seven  feet. 

Q.  Booth  was  down  between  him  and  the  avenue,  was  he  not  ? 

A.  Just  below  the  door  there. 

Q.  Was  he  on  a  line  with  Booth  ? 

A.  The  two  men  were  standing  against  the  wall,  and  he  was  standing  there 
in  conversation  with  them.  You  can  judge  the  distance.  The  rough  had  his 
back  against  the  wall,  with  his  face  turned  towards  the  outside  of  the  street — 
towards  the  curbstone.  Surratt  was  in  front  of  the  entrance  of  the  theatre, 
Btanding  a  little  nearer  to  the  theatre,  just  on  a  line  with  Booth  and  the  villain. 

Q.  But  one  was  standing  against  the  wall,  and  the  other  was  fronting  him  ? 

A.  Yes,  sir ;  Booth  was  a  little  further  out  than  he  was.  I  presume,  if  a  bee 
line  had  been  drawn.  Booth  would  have  been  found  to  be  a  little  further  out 
towards  the  curbstone  than  he  was. 

Q.  What  did  he  do  after  he  called  time  on  this  third  occasion  ? 

A.  He  made  a  very  rapid  disappearance  up  towards  H  street. 

Q.  How  was  this  man's  beard  ? 

A.  He  had  no  beard.  He  had  a  moustache,  but  that  was  a  very  small 
one. 

Q.  The  light  shone  full  on  his  face  from  the  vestibule  7 

A.  Yes,  sir. 

Q.  As  he  looked  at  th*e  clock  ? 

A.  Yes,  sir. 

Q.  It  was  then  you  saw  him  ? 

A.  Yes,  sir. 

Q.  Do  you  tell  the  jury  it  was  then  you  saw  him,  and  yet  you  did  not  change 
your  place  since  you  originally  took  il  on  the  curbstone  opposite  the  vestibule  ? 
That  you  could  see  his  face  when  he  was  standing  between  you  and  the  light, 
and  looking  at  the  clock  which  was  in  front  of  him  ? 

A.  I  could  see  him  very  readily. 

Q.  Through  the  back  of  his  head  ? 

A.  No,  sir ;  I  was  sitting  kind  of  below  the  point  where  he  was  standing, 
near  the  very  end  of  the  platform,  and  looking  in  the  same  direction  that  he 
was — only  his  face  was  turned  a  little  more  towards  the  wall  than  mine  was.  I 
could  see  his  face  very  readily.  ^ 

Q.  How  far  were  you  from  him  ? 

A.  I  was  about  on  a  line  with  those  other  two. 

Q.  Those  other  two  were  standing  between  the  door  that  leads  into  the 
theatre  and  the  door  that  leads  into  the  restaurant  ? 

A.  Yes,  sir. 

Q.  How  wide  is  the  space  between  the  door  that  leads  into  the  theatre  and 
the  door  that  leads  into  the  restaurant  ? 

A.  I  presume  some  fifteen  feet.     It  might  not  be  that  much. 

Q.  I  understood  you  to  say,  yesterday,  that  there  was  pictured  in  that  coun- 
tenance great  excitement  and  nervousness  ? 

A  Yes,  sir;  and  there  was. 

Q.  Had  you  ever  seen  John  H.  Surratt  up  to  the  night  of  the  14th  ? 

A.  Never,  to  my  knowledge. 

Q.  When  did  you  next,  after  that,  see  this  individual  whom  you  call  John 
■  H.  Surratt  ? 

A  1  saw  him  here  in  Washington. 


TRIAL  OF  JOHN  H.  SURRATT.  149 

A.  No,  air. 

Q.  Did  not  70a  request  to  see  him  ? 

A.  No,  sir.  They  told  me  I  had  better  go  there  and  see  whether  I  would 
recognize  him  ? 

Q.  What  did  you  say  ? 

A.  I  told  them  I  would  go. 

Q.  Did  you  know  Booth  ? 

A.  I  did. 

Q.  How  long  had  you  known  him  I 

A.  I  had  known  Booth  during  my  stay  here  in  Washington.  I  was  here  in 
Washington  nearly  the  whole  of  '64. 

Q.  Were  you  on  social  terms  with  him? 

A.  No,  sir.  I  had  seen  him  at  the  saloon.  I  was  on  social  terms  with  the 
bar-tender  of  that  saloon  below  the  theatre. 

Q.  In  your  dreams  of  Booth  have  you  ever  seen  him  in  any  other  position 
than  that  in  which  you  saw  him  that  night  ? 

A.  No,  sir.  The  one  who  attracted  my  attention  more  particularly  than  did 
Booth  was  the  'nllain? 

Q.  What  is  your  religious  faith  I 

A.  I  am  a  Protestant 

Q.  Of  what  denomination  ? 

Mr.  PiBRRBPONT.  I  must  object  to  that. 

Mr.  Mbrrick.  I  will  waive  the  question.  I  thought  it  possible  that  he  was 
a  Swedenborgian. 

Mr.  PiBRRBPONT.  We  don't  desire  to  bring  religion  into  this  case  in  any 
way. 

The  District  Attorney.  I  have  no  objection  to  the  witness  disclosing  his 
religion,  but  we  object  upon  principle  to  introduciug  any  religious  inquisition 
into  a  court  of  justice. 

Mr.  Mbrrick.  I  have  no  purpose  to  introduce  religious  inquisition,  nor  to  fol- 
W  your  example  in  any  particular. 

The  District  Attorney.  I  think  that  remark  is  entirely  without  founda- 
ticm. 

Mr.  PiBRRBPONT.  I  hope  we  shall  avoid  all  such  controversies,  and  try  this 
Solemn  case  in  a  solemn  way. 

Mr.  Bradley.  Well,  we  are  all  solemnized  now.     Let's  get  on. 

Q.  Have  you  ever  had  any  communication  with  spiritual  mediums  ? 

A.  No,  sir.  I  don't  believe  in  such  foolishness  as  that.  I  cannot  say  that  I 
^m  a  firm  believer  in  dreams,  but  I  have  often  seen  things  in  my  dreams  that  I 
have  seen  before. 

Q.  Don't  you  often  in  your  dreams  have  things  presented  to  you  which  are 
^  happen,  and  then  have  those  things  happen  ? 

A.  I  do  not  know  that  I  have.  I  do  not  put  any  trust  in  dreams  of  events 
Uiat  are  to  happen  ? 

Q.  But  have  you  not  seen  things  in  your  dreams  that  had  not  then  happened, 
but  which  did  afterwards  happen  ?  Have  yon  not  been  in  positions  in  your  life 
^bich  were  familiar  to  you  when  you  thought  of  the  past,  and  yet  in  which  you 
bad  never  really  been  before  ? 

A.  1  have  dreamed  I  was  married,  but  I  was  not  married.  I  was  afterwards, 
however. 

Q.  Did  yon  see  the  vision  of  the  bride  in  your  dreams  ? 
A.  Well,  I  saw  the  person  I  had  communication  with — that  is  all.     It  did 
happen  that  I  got  married. 
Q.  To  the  same  person  presented  before  you  in  your  dreams  ? 


150  TRIAL  OP  JOHN  H.  SUBRATT. 

Q.  Then  there  are  some  of  your  dreams  which  tell  of  the  future  as  well  as 
the  past. 

A.  Yes,  sir;  but  I  never  put  confidence  in  them,  or  allow  them  to  bother  me. 

Q.  But  they  obtrude  themselves  upon  you  sometimes,  do  they  not  ? 

A.  Not  materially. 

Q.  But  they  do  to  some  extent  ? 

A.  That  is  the  only  case. 

Q.  Don't  you  find  that  you  sometimes  have  a  dream  recalled  which  it  is  dif- 
ficult for  you  to  shake  off? 

A.  When  I  dream  of  falling  from  any  height,  or  anything  of  that  sort. 

Q.'  I  mean  the  next  day  1 

A.  I  simply  think  of  it  as  a  horrible  dream — that  is  all.  It  soon  goes  away ; 
generally  after  breakfast. 

Q.  Did  you  say  you  were  examined  at  the  conspiracy  trials. 

A.  I  was. 

Q.  Did  you  state  there  that  you  knew  Booth  ? 

A.  I  have  known  him  by  sight.  I  believe  I  stated  on  the  occasion  of  that 
trial  that  I  knew  him.  A  photograph  was  handed  me,  and  I  told  them  that  was 
Booth. 

Q.  Did  you  state  to  that  commission  that  the  man,  or  one  of  the  men,  you  saw 
conversing  there  that  night  was  J.  Wilkes  Booth  ? 

A.  Yes,  sir. 

Q.  I  understood  you  to  say  that  after  these  three  parties  lined  tbemdelvefl 
opposite  the  space  the  President  was  to  pass,  the  man  whom  you  called  Sunratt 
went  out  to  examine  the  carriage,  and  stumbled  over  your  foot  7 

A.  Yes,  sir. 

Q.  After  it? 

A.  Yes,  sir;  that  is,  after  President  Lincoln  didn't  come  down. 
•  Q.  Did  you  state  on  your  examination  before  the  military  commission  that 
one  of  the  three  ])arties  had  been  standing  out,  looking  at  the  carriage,  on  the 
curbstone,  while  you  were  sitting  there,  and  then  went  back ;  that  they  watched 
awhilC;  and  the  ru»h  came  down  ;  that  many  gentlemen  came  out  and  went  in 
and  had  a  drink  in  the  saloon  ?  Then,  aftey  they  went  up,  the  best  dreaaed 
gentleman  stepped  into  the  saloon  himself;  remained  there  long  enough  to  get 
a  drink,  and  came  out  in  a  style  as  if  he  was  becoming  intoxicated  ?  Is  that 
your  testimony  ] 

A.  That  is  my  testimony  1 

Q.  Then,  in  this  testimony,  you  state  that  the  examination  of  the  carriage 
had  been  made  before  the  rush  came  down,  and  "  before  the  President  did  not 
come  down  as  they  seemed  to  expect."  In  your  testimony  now,  as  I  understand 
you,  you  say  that  it  was  "  after  he  did  not  come  down,  as  they  seemed  to  ex- 
pect," that  the  examination  of  the  carriage  was  made  ? 

A.  Yes,  sir ;  the  rush  was  a  long  time  coming  down.  They  did  not  all  come 
down  at  once. 

Q.  Then  you  think  these  are  harmonious  statements  1 

A.  Yes,  sir ;  that  is  correct.  I  have  thought  more  deeply  over  it,  and  have 
figured  it  out  since  the  best  I  could. 

Q.  This  testimony,  then,  before  the  military  commission  is  not  correct,  and 
what  you  now  state  is  correct  ? 

A.  I  see  nothing  wrong  in  it. 

Q.  Then  why  do  you  say  you  have  thought  more  deeply  over  it  since  1 

A.  I  have  not  changed  it  materially. 

Q.  Is  your  mind  the  same  now  that  it  was  when  you  testified  down  at  the 
arsenal  ? 

A.  It  is  a  little  clearer  now. 

Q.  In  what  particular  is  it  a  little  clearer  1 


TRIAL   OF  JOHN  H.   SURRATT.  151 

A.  In  the  transactions  in  front  of  the  theatre. 

Q.  Then  wherein  does  your  recollection  differ  now  from  what  yonr  recollec- 
tion was  at  the  time  of  that  trial,  with  regard  to  the  examination  of  the  carriage  ? 

A.  Not  any  at  all. 

Q.  Then  it  is  no  clearer  as  to  that  ? 

A.  It  is  a  little  clearer. 

Q.  Then,  if  it  is  a  little  clearer,  in  what  particular  is  it  a  little  clearer  ? 

A.  There  are  little  incidents  that  I  did  not  think  of  before. 

Mr.  Merrick.  I  am  not  calling  yonr  attention  to  any  little  incidents.  In 
jour  examination  before  that  commission  yon  stated  that  a  man  had  been  stand- 
ing out  and  examining  the  carriage  before  the  time  when  they  expected  the  Presi- 
dent to  come  down.  You  now  state  that  the  man  went  out  to  examine  the  car- 
riage after  the  time  they  expected  the  President  to  come  down.    Which  is  correct  ? 

A.  It  was  all  about  the  same  time.  I  can  say  that  my  testimony  now,  and 
then,  is  just  the  same.  I  believe  he  was  out  there  just  immediately  as  they 
commenced  to  come  down.  I  know  he  was  there,  and  know  it  from  the  fact  of 
my  foot  being  in  his  way.     I  have  thought  deeply  over  this,  and  every  particular. 

Q.  How  large  a  man  was  J.  Wilkes  Booth  ? 

A.  He  was  a  tall  man — a  heavier  man,  a  great  deal,  than  Surratt. 

Q.  How  tall  was  he  ? 

A.  As  tall  as  I  am. 

Q.  How  tall  are  yon  ? 

A.  Abont  five  feet  eleven ;  I  was  five  feet  ten  and  a  half  some  time  ago— 
g:ue8s  I  am  eleven  now. 

Q.  How  large  was  the  mean-lookiog  man ;  yon  say  he  was  rather  low  in 
BUture? 

A.  Yes,  sir ;  jast  such  a  man  as  Edward  Spangler. 

Q.  Without  the  moustache  ? 

A.  Yes,  sir. 

Q.  Are  you  as  confident  about  the  identity  of  Spangler,  as  you  are  about  the 
identity  of  Surratt  ? 

A.  No,  sir ;  the  shade  of  the  wall,  you  know,  kind  of  hid  Spangler.  He  was 
leaning  against  the  wall ;  the  light  did  not  strike  exactly  there. 

Q.  Did  you,  or  not,  testify  before  that  commission  to  this  effect :  That  after 
Booth  (the  well  dressed  man  as  yon  call  him  in  this  report)  came  out  from  the 
saloon,  he  stepped  up  and  whispered  to  this  ruflSan,  (that  is,  the  miserablest  one 
of  the  three,)  and  then  went  into  the  passage  that  leads  to  the  stage  from  the 
street ;  then  the  smallest  one  stepped  up  and  called  the  time  ? 

A.  That  was  my  testimony  then,  and  it  is  my  testimony  to-day. 

Q.  That  the  smallest  one  of  the  three  called  the  time  ? 

A.  Yes,  sir. 

Q.  Did  you  state  before  the  military  commission,  when  asked  to  describe  the 
thii^  party,  as  is  reported  here :  "  He  was  better  dressed  than  any  I  see  here. 
He  i)ad  on  one  of  the  fashionable  hats  they  wear  here  in  Washington,  with  round 
top  and  stiff  brim.  Q.  Can  yon  describe  his  dress  as  to  color  and  appearance  ? 
A.  No,  sir,  I  cannot  describe  it.  Q.  How  was  the  well  dressed  man  as  to  size  ? 
A.  He  was  not  a  large  man — about  five  feet  six  inches  hieh."     Did  you  state  that  ? 

A.  Yes,  sir ;  from  sitting  down.     That  is  what  I  judged  from. 

Q.  Do  you  now  state  that  the  man  that  called  the  time  was  five  feet  six  inches? 

A.  No,  sir ;  but  from  my  position,  sitting  down  on  the  curbstone,  I  should 
bave  judged  him  to  be  five  feet  six  or  seven  inches.  I  paid  no  particular  atten- 
tion to  that,  so  as  to  be  able  to  judge  exactly  his  height. 

Q.  He  was  not  a  largo  man  then,  but  is  a  large  man  now.  The  man  you  saw 
hu  not  changed  so  much  as  that,  has  he  ? 

A.  I  call  a  man  a  large  man  if  he  be  only  five  feet  high,  if  he  is  heavily  built. 


152  TRIAL   OP  JOHN   H.  SURBATT. 

Q.  But  this  was  an  inquiry  as  to  his  height,  and  70a  answered  five  feet  six 
inches  ? 

A.  Yes,  sir ;  that  is  what  I  thought ;  I  was  sitting  down ;  I  did  not  intend 
to  be  very  precise  in  describing  the  size  of  the  man.  What  I  meant  by  the 
smallest  man  was  the  slimmest  one. 

Q.  You  then  knew  that  Booth  was  5  feet  10 J  or  11  inches  ;  and  you  then 
testified  that  the  smallest  man  of  the  three  called  the  time  ? 

A.  I  was  not  so  confident  of  Booth  being  5  feet  1 1  inches.  I  thought  he  was 
somewhere  about  my  own  size. 

Q.  When  you  said  this  man  was  the  smallest  man  of  the  three,  did  you  mean 
that  he  was  the  slimmest  man  of  the  three  7 

A.  I  meant  he  was  the  lightest  man. 

Q.  Now,  I  will  ask  you  this  question  :  According  to  your  recollection  of  the 
appearance  of  those  men  there  that  night,  was  there  not  of  the  three  men  one  or 
two  who  were  over  5  feet  6 1 

A.  Well,  I  am  a  better  judge  now  than  I  was  then. 

Q.  Why  so  ? 

A.  Because  I  have  measured  men  every  day. 

Q.  Has  that  been  your  business  ? 

A.  Yes,  sir. 

Q.  How  so  ? 

A.  As  recruiting  sergeant ;  I  have  to  take  the  heights  of  the  men.  Then  I 
was  no  judge  at  all.  1  was  then  not  observing  the  height  of  the  men  particu- 
larly, but  what  they  did  and  said. 

Q.  You  say  you  stated  to  the  military  commission  that  the  man  who  had  such 
a  villanous  look  was  the  shortest,  but  yet  the  heaviest  man  of  the  three  ? 

A.  No,  sir ;  I  said  that  at  the  provost  marshal's  office. 

Q.  Did  they  write  it  down  there  ? 

A.  I  do  not  know.  They  sent  me  up  to  the  Old  Capitol  prison  to  identify 
him.  I  pointed  out  Edward  Spangler  as  the  man.  He  was  among  others  who 
were  brought  up.     Sergeant  Cooper  was  present. 

Q.  Was  he  the  smallest  one  ? 

A.  He  was  the  largest  man,  although  the  shortest,  in  my  way  of  speaking. 

Q.  Did  you  testify  before  the  militaiy  commission  as  follows :  "  Q.  About 
how  high  do  you  think  the  man  dressed  in  slouched  clothes  was  1  A.  He  was 
about  5  feet  8  or  9  inches  high  '  ? 

A.  I  believe  I  did. 

Q.  Then  did  you  not  testify  at  the  same  time  that  the  genteelly  dressed  man 
was  5  feet  6  inches  ? 

A.  Yes,  sir. 

Q.  Then  if  you  did  that,  was  not  the  man  with  the  slouch  hat  the  lai^;er  of 
the  two  ? 

A.  Yes,  sir;  he  was  larger  in  proportion.  I  mean  by  large,  a  man  who  is 
stout  and  heavy ;  not  that  he  is  the  tallest.  I  will  say  here  that  I  had  not  a 
good  judgment  of  the  man  against  the  wall ;  because  he  was  in  a  leaning  attitude. 

Q.  I  understand  you  to  say  that  Booth  was  taller  than  the  man  who  called 
the  time  ? 

A.  No,  not  particularly.  I  did  not  pay  much  attention  to  the  height  then; 
but  now,  since  I  have  looked  at  it,  I  do  not  believe  there  is  much  difference  in 
the  height. 

Q.  Looked  at  what  ? 

A.  At  the  position  of  the  men ;  at  the  position  they  had  occupied. 

Q.  You  mean,  then,  since  you  have  looked  at  John  Surratt  ? 

A.  No,  sir ;  I  mean  since  I  have  been  in  the  habit — since  it  has  become  my 
bnsinesBB  to  measure  the  height  of  men. 


TRIAL  OP  JOHN  H.  8URRATT.  153 

Q.  Did  you  state  to  the  military  commission  that  70a  paid  no  particular  at 
tention  to  their  heights  ? 

A.  Noy  sir ;  I  only  gave  what  I  supposed  to  he  their  heights. 

Q.  Can  you  account  to  this  jury  for  the  fact  that  when  you  were  called  upon 
to  speak  of  this  man  hefore  the  military  commission,  you  should  have  picked  out 
from  the  three  one,  and  said  the  smallest  one  called  the  time  ? 

A.  I  called  him  the  smallest  man  because  he  was  so  thin. 

Q.  Then  afterwards  you  stated  that  he  was  five  feet  six  ? 

A.  I  stated  that  was  my  judgment 

Q.  You  say  now  that  Booth  was  Hve  feet  ten  and  a  half  or  eleven,  and  the 
other,  Spangler,  five  feet  eight  ? 

A.  I  could  not  on  my  oath  say  how  tall  Bpangler  was,  because  he  was  lean- 
ing against  the  wall  and  not  straightened  up. 

Q.  Can  you  tell  us  why,  when  you  said  the  smallest  man  called  the  time,  you 
did  not  explain  to  the  commission  that  you  referred  only  to  heft  and  not  to 
beight  ? 

A.  Because  it  was  not  necessary. 

Q.  Then  you  told  the  commmission  that  the  smallest  man  of  the  three  called 
the  time  ;  that  he  was  five  feet  six ;  the  other  ^ve  feet  eight,  and  the  other,  again, 
five  feet  ten,  and  never  explained  that  you  did  not  mean  the  height  1 

A.  No,  sir ;  with  regard  to  the  man  standing  against  the  wall  I  could  not  tell 
▼hat  his  height  was,  but  I  judged  him  to  be  the  height  mentioned  there,  when 
straightened  up.  I  did  not  consider  my  judgment  then  as  to  height  worth  any- 
thing at  all ;  now,  however,  I  do. 

Q.  If  you  knew  John  Wilkes  Booth  at  the  time  of  the  trial  before  the  military 
commission,  why  did  you  not  tell  the  commission  that  it  was  Booth  whom  you 
saw  there  that  night  1 

A.  They  gave  me  the  picture  in  order  to  have  me  satisfy  myself  before  them 
that  that  was  the  man. 

Q.  Then  you  did  not  tell  them  that  it  was  Booth  you  saw  talking  there  ? 

A.  Yes,  sir;  I  did. 

Q.  How  did  you  tell  them  ? 

A.  I  told  them  it  was  Booth  who  came  out  of  the  restaurant.  They  showed 
me  his  photograph,  and  I  told  them  that  was  the  man  to  whom  I  referred. 

Q.  Did  not  they  show  you  that  photograph  at  the  provost  marshal's  office 
before  going  down  to  the  military  commission  ? 

A.  They  did  not. 

Q.  Let  me  ask  you  if  this  is  correct — 

**Q.  How  was  the  well-dressed  man  as  to  size  ? 

"A.  He  was  not  a  very  large  man — about  five  feet  six  inches  high." 

Did  you  testify  to  that  ? 

A.  I  did ;  but  I  had  no  reference  to  height. 

Q.  Then  why  did  you  say  ''five  feet  six  inches  high?" 

A.  I  put  that  in  afterwards.  I  meant  that  he  was  not  a  very  large  man.  A 
ikian  forty-four  inches  across  the  breast  is  a  large  man,  in  my  opinion,  if  he  be 
oqIt  five  feet  four  inches  in  height. 

Q.  When  you  were  examined  before  the  military  commission  did  you  see 
Uiere  present  the  same  man  who  had  examined  you  at  the  provost  marshal's 
•fficef 

A.  No,  sir;  not  to  my  knowledge.  I  did  not  get  to  see  the  cross-examiner 
tt  alL  The  man  who  was  cross-examining  was  sitting  in  the  rear  of  me.  I  was 
^t  allowed  to  face  him  at  all;  I  faced  the  major  generals.  The  questions  were 
^ed  me  firom  the  other  side. 

Q.  Did  yon,  in  your  examination  before  the  military  commission,  give  uy 
ieoeription  of  the  individual — the  third  party — whom  yon  now  call  John  H. 


154  TRIAL   OP   JOHN    H.   8UBRATT. 

A.  I  did. 

Q.  Did  you  Bay  then  anything  about  the  light  ehining  on  his  face  ? 

A.  I  cannot  now  recollect  whether  I  did  or  did  not  say  anything  about  the 
light. 

Q.  Did  you  eay  anything  about  his  pale  face  ? 

A.  I  have  not  read  my  testimony  over  for  some  time. 

Q.  I  am  not  asking  whether  you  have  read  your  testimony  or  not,  but  as  to 
what  you  testified  to. 

The  Court.  Mr.  Merrick,  do  you  propose  in  the  cross-examination  of  each 
of  these  witnesses  to  take  up  the  testimony  delivered  somewhere  else,  and  go 
through  it  seriatim,  and  inquire  why  they  did  not  say  this,  and  why  they  did 
not  say  that  ? 

Mr.  Merrick.  No,  sir. 

The  Court.  If  there  is  anything  in  regard  to  which  you  wish  to  contradict 
the  witness,  the  proper  way  is  to  lay  the  foundation  by  asking  him  whether  he 
said  so  and  so.  That  is  the  usual  rule.  We  will  never  get  through  in  this 
way.     You  have  now  been  two  hours  examining  this  witness. 

Mr.  Merrick.  I  think  it  was  very  profitably  spent,  your  honor,  although  it 
may  appear  rather  self-complimentary  to  say  so.  I  do  not  wish,  sir,  to  trans- 
gress any  rule,  but  to  keep  entirely  within  proper  limits. 

The  Court.  I  do  not  object  to  considerable  latitude,  but  the  cross-examina- 
tion ought  to  be  kept  within  bounds,  and  with  some  regard  to  the  general  rules 
of  evidence  on  the  subject. 

The  court  here  took  a  recess  for  fifteen  minutes. 

afternoon  session. 

Cross-examination  of  Sergeant  Dye  continued  : 
By  Mr.  Merrick  : 

Q.  Will  you  state  whether  there  was  anything  else  that  excited  your  suspi- 
cions except  what  you  have  already  told  the  jury  ? 

A.    No,  sir. 

Q.  At  what  time  in  the  relation  of  incidents  did  your  suspicions  become  ex- 
cited? 

A.  At  the  second  calling  of  time. 

Q.  It  was  then  you  undid  your  pistol  ? 

A.  Yes,  sir. 

Q.  Did  you  think  it  anything  remarkable  to  see  Booth  about  that  day  ? 

A.  No. 

Q.  It  was  only  remarkable,  as  I  understand  you,  that  a  well  dressed  man 
should  have  been  conversing  with  so  villanous  a  looking  man  % 

A,  Yes,  sir. 

Q.  I  desire  that  you  will  describe  to  the  jury,  as  near  as  you  can,  the  location 
of  that  clock  ? 

A.  To  my  recollection,  just  as  you  went  into  the  theatre,  you  look  right  be- 
fore you  and  you  will  see  it.  To  my  mind  the  clock  was  right  in  front  of  yon 
in  the  vestibule. 

Q.  Right  in  front  of  the  middle  door,  was  it  1 

A.  That  is  my  recollection ;  it  was  right  square  up  before  you  as  you  go  in. 

Q.  You  could  not  see  it  from  where  you  were  silting  ? 

A.  No,  sir ;  I  could  not  see  inside  the  door. 

Q.  You  were  sitting  on  the  edge  of  the  plank,  as  I  understand ;  was  the  car- 
riage above  or  below  you  ? 

A.  The  carriage  was  above  me — ^the  rear  part  of  it. 

Q.  Which  way  were  yon  facing  as  you  sat  on  the  platform  ? 

A.  Facing  the  theatre. 


TRIAL  OF  JOHN  H.  SUKRATT  155 

Q.  You  have  said  that  you  went  afterwards  to  take  some  oysters  ;  please  to 
tell  the  jury  what  was  the  nature  of  the  suspicion  you  had  ? 

A.  I  thought  there  was  something  wrong  going  on,  or  that  was  not  right. 
Q.  Of  what  nature? 

A.  I  thought  it  was  something  against  the  President,  but  I  could  not  say. 
The  excited  manner  of  the  man  calling  the  time  and  his  frequent  whispering 
there  was  what  attracted  my  attention. 

(Objection  by  district  attorney  that  the  suspicions  of  a  witness  are  not  admis- 
sible. Much  ktitude  is  to  be  allowed  in  cross-examination,  but  counsel  for  the 
defence  have  transcended  the  discretion  allowed  even  upon  cross-examination. 

The  court  said  there  was  no  objection  to  a  witness  stating  as  a  part  of  the  res 
gesta,  that  certain  actions  of  other  parties  excited  suspicion  in  his  mind,  but  it 
was  inadmissible  to  examine  him  as  to  the  nature  of  those  suspicions. 

Mr.  Bradlev  admitted  that  the  question  would  be  inadmissible  on  an  examina- 
tion in  chief,  but  held  it  to  be  within  the  legitimate  limits  of  cross-examination. 
The  court  ruled  the  question  to  be  inadmissible. 
Exception  to  ruling  taken  by  counsel  for  defence.) 

Q.  Yon  went,  as  you  have  stated,  to  the  oyster-house ;  what  did  you  do  after 
you  went  there  1 
A  Ordered  oysters. 
Q.  What  next? 

A.  We  sat  down  to  eat  them.     I  do  not  recollect  whether  we  ate  all  of  them 
or  not ;  I  do  not  think  we  did.    A  man  came  rushing  in  and  said  the  President 
was  shot. 
Q.  What  did  you  do  then  ? 
A.  We  immediately  got  up  and  started  for  camp. 
Q.  Why  did  you  go  out  to  camp  ? 

A.  We  went  out  to  camp  because  we  did  not  know  but  there  would  be  a  detail 
made  of  a  guard. 
Q.  Was  that  all  you  did  after  you  started  out  of  the  oyster-house  ? 
A.  Yes,  sir ;  we  hurried  out  to  camp.     I  was  the  first  one  who  told  General 
Hall,  after  I  got  there,  that  the  President  had  been  shot. 

Q.  How  came  you  to  tell  this  lady  at  the  window  on  H  street  that  Booth  had 
shot  the  President  ? 

A  The  man  who  came  into  the  saloon  said  it  was  Booth.  It  confirmed  my 
Bospicions  immediately,  and  I  so  spoke  to  Sergeant  Cooper,  that  I  was  right  in 
mj  suspicions  in  front  of  the  theatre  of  their  actions. 

Q.  Have  you  ever  testified  to  that  before  in  any  of  your  examinations  ?  Have 
70a  ever  stated  this  affair  on  H  street  ? 

A  I  have  not.     This  occurred  to  me  a  long  while  afterwards.   I  never  knew 
where  the  Surratt's  lived  until  within  three  months. 
Q.  It  occurred  to  you  after  that  trial  ? 

A  O,  yes ;  after  I  ascertained  they  lived  on  H  street,  I  asked  where  the 
house  was,  and  since  I  have  arrived  here  I  went  to  the  house,  and  the  house 
was  familiar  to  me. 

Q.  I  understand  you  to  say  that  the  lady  you  saw  then  resembled  the  one  you 
flaw  at  the  conspiracy  trial  ? 
A.  Yes,  sir. 

Q.  Did  that  strike  you  when  you  saw  her  at  the  conspiracy  trial  ? 
A.  No,  sir ;  it  did  not. 
Q.  When  did  it  first  strike  you? 
A.  Since  I  learned  of  the  house  on  H  street, 
Q.  Did  not  you  know  the  house  on  H  street  at  that  time  ? 
A«  No,  sir  ;  I  never  knew  it  until  I  came  to  this  city  lately. 
Q.  Then  it  never  struck  yon  that  the  lady  yon  saw  at  toe  conapiiacy  tria 


156  TRIAL   OF   JOHN    H.   SURRATT. 

resembled  the  lady  you  eaw  on  H  street,  until  you  learned  that  Mrs.  Surratt's 
house  was  on  H  street  ? 

A.  Not  until  I  learned  that  she  lived  there,  and  the  relation  of  the  house  to 
the  incidents  that  had  occurred. 

Q.  How  long  after  the  trial  was  that  ? 

A.  Some  time  after.     Since  I  came  hack  to  the  city. 

Q.  You  did  not  know  at  the  time  of  the  trial  that  Mrs.  Surratt*e  house  was 
there  ? 

A.  No,  iir,  I  did  not. 

Q.  What  recalled  this  to  your  mind  ? 

A.  When  I  learned  that  her  house  was  on  H  street,  after  I  came  back  to 
Washington. 

Q.  Two  years  afterwards  ? 

A.  Yes,  sir  ;  I  remember  that  she  was  an  elderly  lady. 

Q.  Then  you  saw  Mrs.  Surratt  on  the  trial,  as  I  understand  you,  within  two  or 
three  weeks  of  the  occurrence  on  H  street,  and  it  never  struck  you  that  she  re- 
sembled the  lady  who  looked  out  of  the  window  that  night  ? 

A.  No,  sir ;  it  was  when  the  question  was  raised  in  the  press  of  the  country 
that  Mrs.  Surratt  had  been  condemned  unjustly  that  all  this  came  into  my 
mind  about  her.  I  learned  that  she  lived  on  H  street,  and  1  remembered  the  per- 
son asking  what  was  going  on  down  town,  in  a  state  of  excitement,  although  no 
person  had  passed  that  way.  I  thought  it  was  a  person  who  knew  something 
was  coming  off  down  town  ;  that  is  it.  I  believe  it  in  my  own  mind,  too,  that 
she  knew  all  about  it,  and  was  waiting  with  a  dim  light  in  the  parlor. 

By  Mr.  Pierrepont  : 

Q.  You  stated  in  your  cross-examination  that  your  judgment  two  years  ago 
about  men's  height  was  not  of  any  value,  but  that  it  is  now  of  considerable  valne; 
why  is  it  of  greater  value  now  than  it  was  two  years  ago  ? 

Question  objected  to  by  Mr.  Bradley  as  having  been  already  answered. 

Mr.  Pierrepont  thought  not,  directly. 

The  Court.  The  record  taken  by  the  stenographers  will  show  that  the  wit- 
ness was  asked  this  question,  and  he  answered  that  his  judgment  was  better  now 
than  then,  because  for  the  last  year  or  more  he  had  been  engaged  in  enlistin? 
men ;  that  it  was  his  business  to  take  the  height  of  every  man  he  enlisted,  and 
that  in  that  way  he  had  become  ah  expert  or  judge  of  the  height  of  different 
persons. 

Mr.  Pierrepont.  I  am  quite  content  with  that  statement.  I  will  ask  the 
witness  but  one  other  question. 

Q.  State  whether  you  have  ever  had  a  habit  of  considering  or  speaking  of 
men  5  feet  6  inches  high — men  weighing  130 — as  large  men  or  small  men. 

Mr.  Bradley.  We  object  to  that  question. 

Mr.  Pierrepont.  The  question  is  in  response  to  questions  they  have  asked 
the  witness  in  relation  to  large  men  and  small  men. 

The  Court.  And  he  has  answered  that  he  estimated  the  size  of  men  by  their 
heft  rather  than  by  their  height. 

Mr.  Pierrepont.  That  is  all  I  desire  to  have  understood. 

By  a  Juror: 
Q.  I  wish  to  ask  the  witness  whether  he  saw  the  entire  full  face  of  the  pris- 
oner fi-om  the  position  he  occupied  on  the  carriage  step  on  the  night  in  question? 
A.  J  saw  all  the  time  three-quarters  of  it,  and  a  part  of  the  time  the  whole 
it. 

By  another  Juror  : 
Q.  How  was  the  prisoner  dressed  on  the  night  of  the  assassination  ? 
A.  His  coat  was  drab,  his  hat  was  something  like  this  hat  I  have  here,  but  bo 


TRIAL  OF  JOHN  H.  8UBRATT  157 

exactly;  one  of  these  fashionable  rouod-top,  stiff-brimmed.    It  appeared,  to  mj 
recollection,  to  have  been  black. 

Q.  How  as  to  the  pants  ? 

A.  I  do  not  recollect. 

Q.  Had  he  on  a  watch  chain  or  guard  that  night  ? 

A.  I  did  not  observe  any. 

Peter  Taltavul  sworn  and  examined. 
By  Mr.  Pibrrbpont  : 

Q.  Where  did  you  live  on  the  14th  of  April,  1865,  on  the  day  the  President 
was  murdered  ? 

A.  I  lived  on  Eighth  street  east,  at  the  Navy  Yard,  between  G  and  I,  south. 

Q.  Where  was  your  place  of  business  ? 

A.  On  Tenth  street. 

Q.  What  was  your  business  ? 

A.  I  kept  a  restaurant. 

Q.  Where  was  that? 

A.  Right  next  to  FordHs  theatre. 

Q.  Were  you  in  the  restaurant  at  the  time  the  murder  was  committed  ? 

A.  I  was. 

Q.  Did  you  know  John  Wilkes  Booth  ? 

A.  Yes,  sir. 

Q.  Had  you  frequently  seen  him  there,  or  otherwise  ? 

A.  He  used  to  come  in  there  very  often. 

Q.  You  knew  him  well  by  sight  ? 

A.  Yes,  sir. 

Q.  Did  he  come  in  that  evening  ? 

A.  He  came  in  that  night. 

Q.  What  did  he  do? 

A.  He  walked  up  to  the  bar  and  called  for  some  whiskey. 

Q.  What  did  you  do  ? 

A.  I  gave  it  to  him. 

Q.  State  whether  he  was  alone. 

A..  He  was. 

Q.  Did  he  drink  it  ? 

A.  Yes,  sir. 

Q.  Then  what  did  he  do. 

A.  He  called  for  some  water.  I  did  not  give  him  any  water  when  he  called 
for  the  whiskey.  It  is  usual  to  give  water,  but  I  did  not  give  it  to  him.  He 
called  for  water,  and  I  gave  it  to  him.  He  laid  the  money  on  the  counter  and 
vent  right  out 

Q.  State  how  he  appeared  as  to  coolness  or  nervousness. 

A.  I  did  not  see  anything  unusual  in  him  at  all. 

Q.  Nothing  unusual  in  his  dress  ? 

A.  No,  sir. 

Q.  He  was  dressed  in  his  usual  way — no  disguise  ? 

A.  No,  sir;  no  disguise. 

Q.  How  many  minutes  after  he  took  that  dnnk  was  it  before  yon  heard  the 
President  was  assassinated  ? 

A.  As  near  as  I  can  come  at  it,  it  must  have  been  from  eight  to  ten  minutes. 

Q.  Had  you  seen  Booth  often  before  ? 

A.  I  used  to  see  him  almost  every  day. 

Q.  Who  had  you  seen  him  with  near  the  time  of  this  occurrence  ? 

A.  I  could  not  exactly  recollect.  He  used  to  come  in  with  several  gentlemen; 
^metimes  with  one,  and  sometimes  with  another. 

Q.  I  will  call  your  attention  to  a  particular  time.  Did  you  see  him  with  any 
Pcnon  charged  as  one  of  the  conspirators  ? 


L 


158  TRIAL  OF   JOHN   H.   SUBBATT.- 

A.  I  saw  him  two  or  three  days  before  with  Herold. 

Q.  Where  was  that  ? 

A.  In  the  same  place ;  he  came  in  there. 

Q.  State  what  occurred. 

A.  I  could  not  exactly  saj.     I  thiuk  thej  just  came  in — came  to  the  bar  and 

fot  a  drink ;  probably  had  a  little  conversation  together,  and  went  oat  again, 
could  not  particularly  describe  what  passed  there  at  all,  not  taking  any  par- 
ticular notice. 

Q.  On  the  night  of  the  murder  did  you  see  this  same  Herold  come  in? 

A.  No,  sir ;  1  did  not. 

Q.  On  that  night  or  the  night  previous  did  any  one  come  in  and  inquire  for 
Booth? 

A.  No,  sir ;  that  was  in  the  afternoon.  In  the  afternoon  of  the  same  day 
Herold  came  in  there  and  asked  if  I  had  seen  John.  I  asked  him  what  John. 
He  said  John  Wilkes  Booth.     I  told  him  I  had  not  seen  him. 

Q.  What,  then,  did  he  say;  did  he  ask  you  anything;  and  if  so,  what? 

A.  No,  he  simply  came  to  the  bar  and  inauired  if  «fohn  had  been  there.  I 
asked  him  what  John,  and  he  said  John  Wilkes  Booth.  • 

Q.  Did  he  ask  you  whether  he  had  been  there  that  day  or  evening  ? 

A.  No,  sir;  he  just  shut  the  door  and  went  right  out. 

Q.  And  between  the  time  Herold  came  in  and  the  time  Booth  came  in,  jus 
before  the  assassination,  you  had  not  seen  either  ? 

A.  No,  sir. 

Q.  At  what  time  in  the  afternoon  of  the  14th  was  it  that  Herold  came  in  ? 

A.  I  judge  it  must  have  been  about  4  o'clock,  as  near  as  I  can  possibly  think 
of  it. 

Q.  At  the  time  Booth  came  in  and  took  a  drink,  just  before  the  assassination, 
was  there  anything  in  his  dress  or  appearance  to  awaken  suspicion  in  your 
mind? 

A.  No,  sir;  I  did  not  take  notice  of  anything  unusual  at  all.  He  just  came 
in  there  and  asked  for  a  drink. 

David  C.  Rbbd  sworn  and  examined. 
By  Mr.  Pibrrbpont: 

Q.  In  what  city  do  you  live  ? 

A.  In  Washington  city. 

Q.  How  many  years  have  you  lived  here  ? 

A.  About  thirty  years. 

Q.  Do  you  know  the  prisoner  at  the  bar  by  sight  ?  (prisoner  made  to  stand 
up.) 

A.  I  do. 

Q.  How  long  have  you  known  him  by  sight  ? 

A.  Since  quite  a  boy. 

Q.  Since  you  or  he  was  quite  a  boy  ? 

A.  Since  he  was  quite  a  boy. 

Q.  Were  you  in  the  city  of  Washington  on  the  day  of  the  murder  of  the 
President? 

A.  I  was. 

Q.  Did  you  see  the  prisoner  at  the  bar  on  that  day  in  Washington  ? 

A.  I  think  I  did. 

Q.  Where  did  you  see  him? 

A.  I  saw  him  on  Pennsylvania  avenue  just  below  the  National  Hotel.  1 
was  standing  as  he  passed  just  in  front  of  where  Mr.  Steer  keeps  the  sewing- 
machine  store. 

Q.  Which  way  was  he  going  ? 

A.  From  towards  the  Capitol. 


TRIAL  OF  JOHN  H.  8UBRATT.  159 

Q.  About  what  time  of  the  day  of  the  14th  was  it? 

A.  It  was  about  half  past  two,  as  near  as  I  can  recollect — between  two  and 
half  past  two. 

Q.  Had  70U  had  a  nodding  acquaintance  with  him  at  all  ? 

A.  I  had ;  I  knew  him,  and  I  suppose  he  knew  me.  There  was  no  intimate 
acquaintance  at  all.    I  recognized  him  when  I  met  him. 

Q.  As  he  passed  did  you  recognize  him,  or  he  jou  ? 

(Question  objected  to  by  Mr.  Bradley  as  leading.) 

Q.  As  he  passed,  state  what  occurred. 

A.  There  was  a  recognition;  whether  it  was  by  him  or  me  first,  I  am  unable 
to  say. 

Q.  State  whether  it  was  by  both. 

A.  1  could  not  state  positively  whether  I  nodded  first  or  he  did ;  we  both 
nodded. 

Q.  Will  you  state  whether  there  was  anything  about  his  dress  or  equipments 
on  that  occasion  which  attracted  your  attention  ? 

A.  There  was. 

Q.  Will  you  tell  the  jury  what  it  was  ? 

A.  What  attracted  me  more  particularly  was  his  dress  rather  than  his  face. 
I  remarked  his  clothing  very  particularly. 

Q.  What  was  there  about  him  that  attracted  your  attention? 

A.  The  appearance  of  the  suit  he  wore — very  genteel ;  something  like  country 
manufactured  goods,  but  got  up  in  a  very  elegant  style,  the  coat,  vest  and  panta- 
loons. 

Q.  Was  there  any  reason  why  you  noticed  his  clothes?  If  so,  state  it  to  the 
jary. 

A.  I  cannot  say  there  was  anything  particular,  except  his  appearance  so  re- 
markably genteel.     I  was  rather  struck  with  his  appearance. 

Q.  State  whether  he  was  on  foot  or  on  horseback. 

A.  He  was  on  foot. 

Q.  What  was  there  on  his  feet  ? 

(Question  objected  to  by  Mr.  Bradley  as  leading. 

Objection  overruled.) 

A.  I  suppose  he  had  boots  or  shoes.  As  he  passed  from  me  I  turned  and 
looked  at  his  feet.     He  had  on  a  new  pair  of  brass  spurs. 

Q.  Now  describe  these  spurs. 

A.  They  were  plain  common  brass  spurs ;  nothing  very  particular  about  them 
except  the  rowel. 

Q.  What  was  there  about  the  rowel  ? 

A.  The  rowel  was  very  large  and  xery  blue ;  they  evidently  were  bran  new. 

Q.  What  was  upon  his  head  ? 

A.  He  had  on  a  felt  hat.  It  was  not  one  of  these  very  low-crowned  hats ;  it 
liad  a  rather  wide  brim,  a  sort  of  drab-color  felt  hat. 

Q.  State  whether  the  brim  was  a  stiff  or  a  limber  one. 

A.  It  was  a  stiff-brimmed  hat. 

Q.  Which  way  did  he  go  after  passing  you  ? 

A.  He  was  passing  up  the  avenue  towards  the  Metropolitan  Hotel  from  where 
I  was  standing. 

Q.  State  whether  his  gait  was  rapid  or  slow  ? 

A.  It  was  not  very  rapid ;  an  ordinary  pace  in  walking ;  nothing  very  hasty. 

Cross-examined : 

By  Mr.  Bradlby: 
Q.  What  was  it  that  attracted  your  attention  about  his  dress ;  was  it  a  par- 
ticularly fine  dress  ? 
A.  It  was  a  singular  dress — one  that  I  had  never  seen  him  wear  before.     It 


160  TRIAL   OF   JOHN   H.   8UBBATT. 

was  very  genteel  and  very  pretty.  I  noticed  him  coming  up  ;  I  stood  facing 
him  as  he  passed;  I  was  standing  on  an  elevated  position,  probably  eight  inches 
above  the  pavement. 

Q.  Was  he  in  the  habit  of  dressing  genteelly  or  not  ? 

A.  I  had  never  seen  him  dressed  in  a  suit  of  clothes  anything  like  that  before ; 
I  cannot  say  but  what  he  was  in  the  habit  of  dressing  genteelly. 

Q.  How  did  he  usually  dress  when  you  saw  him  ? 

A.  I  cannot  say  that  I  could  describe  any  particular  dress.  Sometimes  I  have 
seen  him  in  rather  rough  costume  as  he  would  come  in  from  the  country ;  at 
other  times  I  have  seen  him  dressed  as  genteely  as  anybody  that  walks  the 
street. 

Q.  How  long  had  yon  been  in  the  habit  of  seeing  him  come  in  from  the 
country  ? 

A.  Fifteen  years,  as  nearly  as  I  can  recollect. 

Q.  What  was  he  doing ;  what  was  he  engaged  in  ? 

A.  I  have  seen  him  here  market  days,  I  suppose,  passing  and  repassing. 

Q.  Did  he  stand  in  market  1 

A.  I  cannot  say ;  I  never  saw  him  standing  in  market. 

Q.  At  what  intervals  of  time  were  you  in  the  habit  of  seeing  him  during 
that  fifteen  years  ? 

A.  I  could  not  come  at  how  often  I  had  seen  him  in  that  fifteen  years ;  it 
would  be  very  hard  for  me  to  say. 

Q.  When  did  you  see  him  last  before  you  saw  him  on  the  14th  of  April  1 

A.  I  cannot  exactly  name  the  time — that  is,  give  the  date.  It  was  about  the 
time  of  the  opening  of  the  race-course  across  the  river  beyond  the  Eastern 
branch. 

Q.  Yon  saw  him  then  and  there? 

A.  I  saw  him  then  and  there. 

Q.  You  mean  the  first  opening  ? 

A.  Yes,  sir. 

Q.  For  how  long  a  time  had  you  been  accustomed  to  see  him  coming  in  from 
the  country  ? 

A.  I  could  not  give  exact  dates;  I  have  seen  him  since  he  was  quite  a  boy; 
I  have  seen  him  here  with  his  father. 

Q.  How  often  since  he  was  grown  ? 

A.  That  I  could  not  say  positively,  as  to  the  number  of  times ;  there  was 
nothing  remarkable  about  it  by  which  I  could  fix  any  particular  number — ten, 
twenty,  fifty,  or  any  other  number. 

Q.  Did  you  ever  meet  with  him  anywhere  except  passing  ? 

A.  I  have  met  him  at  the  livery  stable,  where  he  stood  talking. 

Q.  What  livery  stable  ? 

A.  Pumphrey's ;  they  used  to  put  up  there,  but  subsequently  changed  to  the 
brick  stable  across  the  way. 

Q.  When  was  that ;  how  long  before  this  event  ? 

A.  It  was  a  considerable  time  before  the  death  of  his  father. 

Q.  Do  you  remember  when  his  father  died  ? 

A.  I  think  his  father  died  some  time  in  1S63 — somewhere  about  that  ueigb- 
borhood. 

Q.  Four  years  ago  ? 

A.  I  think  he  has  been  dead  near  about  that  time. 

Q.  Were  you  ever  at  his  father's  house  ? 

A.  Yes,  sir. 

Q.  How  long  ago  was  that  ? 

A.  In  1851. 

Q.  Sixteen  years  ago  ;  how  large  was  John  Surratt  at  that  time. 

A.  He  was  a  little  chunk  of  a  boy,  probably  so  high.     (Three  feet) 


TRIAL   OF  JOHN    U.   8UBRATT.  161 

Q.  How  often  were  you  at  their  house  ? 

A.  I  was  there  on  three  occasions. 

Q.  In  what  year  ? 

A.  During  the  fall  of  1851. 

Q.  How  often  since  then  ? 

A.  I  have  not  heen  there  since. 

Q.  Where  did  you  meet  him  at  any  time  between  then  and  the  fall  before 
the  death  of  Mr.  Lincoln  ? 

A.  I  have  seen  him  in  the  city. 

Q.  Where? 

A.  As  I  have  said,  at  the  livery  stable,  and  I  have  soeif  him  on  the  street. 

Q.  Did  you  ever  talk  with  him  at  the  livery  stable  ? 

A.  That  I  cannot  say  positively  ;  whether  I  ever  entered  into  conversation 
with  him  more  than  merely  speaking. 

Q.  Do  you  recollect  ever  to  have  said  that  he  had  been  in  your  room  since 
you  knew  him  f 

A.  I  said  I  thought  he  had,  but  I  was  mistaken. 

Q.  Have  you  not  said  you  have  seen  him  in  your  room  frequently  ? 

A.  No,  sir. 

Q.  Do  you  recollect  telling  any  citizen  of  your  acquaintance  that  the  place 
where  you  met  him  at  the  time  you  have  mentioned  on  the  14th  of  April  was 
further  up  the  avenue,  above  Gth  street  1 

A.  No,  sir;  I  never  said  so. 

Q.  Do  you  recollect  having  said  to  any  acquaintance  of  yours  what  his  age 
was  or  his  personal  appearance  ? 

A.  I  described  his  personal  appearance. 

Q.  With  any  citizen,  in  conversation,  do  you  recollect  saying  that  he  was  a 
man  about  35  years  old  ? 

A.  From  30  to  35  years  old  I  supposed  he  might  be. 

Q.  You  say  your  attention  was  not  particularly  drawn  to  Surratt's  face  at 
that  time  ;   can  you  state  whether  he  had  any  beard  or  not  ? 

A.  I  cannot  say  positively  whether  he  had,  or  not ;  if  he  had,  it  was  so 
flight  as  to  be  scarcely  perceivable. 

Q.  Do  yon  mean  so  light  in  color  or  in  growth  ? 

A.  So  light  in  color  and  in  growth. 

Q.  So  that  if  he  had  a  beard  you  do  not  recollect  it  ? 

A.  I  do  not  recollect  any  at  all. 

Q.  What  livery  stable  did  you  go  to  after  his  father's  death  ? 

A.  To  the  brick  stable  belonging  to  Marshall  Brown.  His  father  changed 
from  Pumphrey's  to  that  before  his  death. 

Q.  Who  kept  that  stable  then  ? 

A,  Levi  Pumphrey. 

Q.  Do  you  mean  the  stable  at  the  comer  of  Gth  and  C  streets  ? 

A.  Yes,  sir ;  at  the  comer  of  Gth  and  G  streets. 

Q.  Where  did  younff  Surratt  put  up  his  horse  after  his  father's  death  ? 

A.  Whether  he  put  his  horse  there  or  not  I  am  not  sure.     I  have  seen  him 
at  the  stable,  but  I  have  no  recollection  of  seeing  him  stop  there  on  horseback 

fince  the  death  of  his  father. 
Q.  Do  you  recollect  where  Surratt  the  elder  lived  when  you  visited  him  ? 
A.  Away  down  here  in  Maryland. 
Q.  In  what  is  called  Surrattsville? 
I       A.  Ii  was  not  called  Surrattsville  then  ;  it  was  called  John  Surratt's. 
I       Q'  What  was  there  at  the  place  called  John  Surratt's  ? 
I      A.  He  kept  a  hotel  and  a  post  office. 
I      Mr.  Bradley  desired  to  have  the  privilege  of  recalling  Mr.  Reed  for  cross- 


162  TRIAL  OF  JOHN  H.  8UHBATT. 

examination  at  some  future  time,  after  the  defence  should  have  consulted  with  a 
witness  now  out  of  the  city. 

Mr.  Garrington  objected  to  this  course,  as  being  without  precedent,  and  held 
that  there  was  no  rule  of  court  that  justified  such  a  course. 

Mr.  Bradley  argued  that  it  was  a  matter  within  the  sound  discretion  of  the 
court.  The  defence  expected  to  prove  that  Mr.  Reed  had  made  statements  cot 
of  court  contradictory  to  what  had  been  testified  to  in  court.  The  defence, 
however,  did  not  know  that  Mr.  Reed  was  to  be  called,  and  they  could  not  put 
the  question  in  form  until  the  absent  witness  referred  to  was  here. 

The  decision  of  the  question  was  reserved  until  to-morrow  morning. 

Su»AN  Ann  Jackson  (colored)  sworn  and  examined. 
By  Mr.  Pierrepont  : 

Q.  How  long  ago  were  you  married  ? 

A.  I  have  been  married  two  years  this  May. 

Q.  What  was  your  name  before  marriage? 

A.  Susan  Ann  Mahoney. 
.    Q.  Were  you  married  before  or  after  the  assassination  of  the  President  ? 

A.  I  was  married  two  weeks  after  it. 

Q.  You  remember  that  event  do  you  t 

A.  Yes,  sir. 

Q.  Do  you  remember  where  you  were  living  iu  the  month  of  March,  or  the 
latter  part  of  March,  of  the  year  in  which  the  President  was  assassinated,  before 
you  were  married  ? 

A.  I  was  living  at  Mrs.  Surratt's. 

Q.  On  what  street  was  Mrs.  Surratt's  ? 

A.  On  H  street,  between  6th  and  7th. 

Q.  And  as  you  go  up  that  way  east,  on  which  side  of  the  street  is  it? 

A.  On  the  right-hand  side. 

Q.  Do  you  remember  the  number  ? 

A.  No,  sir,  I  do  not. 

Q.  Do  you  remember  about  the  entrance  or  stoop  of  the  house,  how  that 
was  1 

A.  There  were  high  steps  run  up  in  front. 

Q.  State  to  the  jury  about  how  nigh,  whether  they  went  up  to  the  storj  or 
not. 

A.  It  was  up  to  the  second  story,  pretty  near  the  windows. 

Q.  Then  it  was  very  high,  was  it  ? 

A.  Yes,  sir. 

Q.  Where  did  you  go  from  when  you  went  to  Mrs.  Surratt's  in  March— from 
whose  service  did  you  go  ? 

A.  Mrs.  Brown's. 

Q.  Where  did  Mrs.  Brown  live  ? 

A.  She  lived  on  the  island. 

Q.  Do  you  know  Mrs.  Brown's  first  name,  or  her  husband's  name  ? 

A.  No,  sir,  I  do  not.     I  did  not  stay  there  very  long. 

Q.  Do  you  remember  the  Good  Friday  in  the  April  following  the  March 
when  you  went  to  Mrs.  Surratt's. 

A.  No,  sir;  I  don't  remember  the  very  day  I  went  there. 

Q.  Do  you  remember  the  Good  Friday  following  that  day,  or  any  circum- 
stances about  that  Good  Friday  in  April  ? 

A.  Yes,  sir. 

Q.  Do  you  know  whether  Mrs.  Surratt  went  away  that  day  ? 

A.  Yes.  She  went  down  in  the  country  on  Good  Friday,  between  11  and  12 
o'clock. 

Q.  In  what  did  she  go  ? 


TRIAL  OP  JOHN  H.  8URRATT.  163 

A.  She  went  in  a  buggy. 
Q.  Did  you  ace  the  man  who  went  with  her  ? 
A.  Mr.  Weichman. 
Q.  Did  you  see  him  ? 

A.  Yes,  sir.    He  boarded  there  at  the  same  time. 
Q^  Yon  would  know  him  now,  if  you  were  to  see  him  ? 
A.  Yes,  sir. 

Q.  Did  you  see  Mr.  Weichman  when  he  came  back  with  Mrs.  Surratt 
A.  Yes,  sir  ;  I  saw  him  when  he  came  back  with  Mrs.  Surratt. 
Q.  About  what  time  in  the  evening  did  Mrs.  Surratt  return  1 
A.  As  near  as  I  can  recollect,  it  was  between  8  and  9  o'clock. 
Q.  After  that,  on  that  evening,  will  you  tell  us  whether  you  saw  the  prisoner 
here? 
Witness.  That  one  sitting  over  there  ?  (pointing  to  the  prisoner.)    . 
Mr.  PiERRBPONT.    Yes. 

A.  Yes,  sir;  I  have  seen  him  in  the  dining-room. 
Q.  Who  was  with  him  ? 
A.  His  mother  was  with  him. 
Q.  What  did  his  mother  say  to  you  ? 
A.  I  do  not  know. 
Q.  Had  you  ever  seen  him  before  ? 
A.  No,  sir ;  I  had  never  seen  him  before. 
Q.  How  long  had  you  lived  in  the  house  ? 
A.  I  had  been  there  three  weeks. 
Q.  What  did  his  mother  say  ? 
A.  She  told  me  that  was  her  son. 
Q.  What  else  did  she  say  to  him,  or  about  him  ? 

A.  She  did  not  say  anything  else.  When  I  was  gathering  up  some  clothes  to 
put  in  the  wash,  I  asked  if  they  were  for  Mr.  Weichman,  and  she  said  no,  they 
were  for  her  son. 

Q.  Did  she  say  anything  about  who  he  looked  like  ? 

A.  She  asked  me  did  he  not  look  like  his  sister  Annie. 

Q.  What  did  you  say  to  that  ? 

A.  I  said  I  did  not  know ;  I  did  not  take  good  notice  of  him  to  see  who  he 
favored. 

Q.  Who  was  it  that  asked  you  if  he  did  not  look  like  his  sister  Annie  1 

A.  Mrs.  Surratt. 

Q.  Did  you  bring  anything  into  the  room  you  have  spoken  of  where  she  was 
Bitting  with  her  son  ? 

A.  I  had  just  brought  a  pot  of  tea  into  the  room. 

Q.  Who  was  in  the  room  when  yon  brought  in  the  pot  of  tea  ? 

A.  Not  any  one,  except  her  son. 

Q.  Do  jrou  see  any  one  now  who  she  told  you  then  was  her  son  ? 

A.  Yes,  sir ;  I  am  looking  at  him  now. 

Q.  State  whether  that  is  the  one. 

(The  prisoner  made  to  stand  up.) 

A.  That  is  the  man,  sir. 

Q.  After  you  took  in  the  pot  of  tea,  what  did  you  do  ? 

A.  Just  went  out  again. 

Q.  Did  you  return  again  ? 

A.  No,  sir ;  I  did  not  return  in  the  room  any  more. 

Q.  Will  yon  tell  us,  as  near  as  you  can,  about  what  time  in  the  evening  you 
took  in  the  pot  of  tea  ? 

A.  As  near  as  I  can  come  at  it,  she  came  home  between  8  and  9  o'clock. 
Well,  when  she  came  home  and  came  to  the  dining-room,  I  carried  in  supper  for 


164  TRIAL  OF  JOHN  n.  SURBATT. 

Mr.  Weichman,  the  man  who  boarded  there.     After  he  went  out  she  called  me 
and  asked  me  for  a  second  plate,  cup,  and  saucer.     I  carried  them  to  her. 

Q.  And  then  jou  found  this  man  there  ? 

A.  Yes,  sir. 

Q.  Did  you  know  his  sister  Annie  ? 

A.  Yes,  sir ;  she  lived  there. 

Q.  She  was  in  the  house  ? 

A.  Yes,  sir. 

Cross-examined  : 

By  Mr.  Bradley  : 

Q.  Were  you  ever  examined  as  a  witness  about  this  matter  before  ? 

A.  Yes,  sir ;  Mr.  Omit  examined  me — or  Captain  Orfutt.     I  am  not  sore 
about  the  name. 

Q.  Where  were  you  examined  ? 

A.  He  carried  me  down  to  his  office — I  forget  where  it  was — in  the  night. 

Q.  When  was  that? 

A.  Monday  night  after  the  assassination  happened. 

Q.  They  took  you  down  to  a  guard-house,  or  some  place  I 

A.  They  took  me  to  the  office. 

Q.  Do  you  recollect  where  it  was  ? 

A.  No,  sir;  I  had  never  been  there  before.     I  do  not  recollect  where  it  was. 
I  think  it  was  somewhere  near  the  Treasury. 

Q.  Who  took  you  there — do  you  remember  ? 

A.  No,  sir  ;  I  went  in  a  hack. 

Q.  You  were  examined  there  ? 

A.  Yes,  sir. 

Q.  Did  they  write  down  your  examination  ? 

A.  Yes,  sir. 

Q.  You  were  not  examined  afterwards  ? 

A.  No,  sir ;  not  then,  I  was  not. 

Q.  Were  you  at  any  time  after  this  ? 

A.  Yes,  sir ;  since  then  I  have  been  down  to  what  they  call  the  War  De- 
partment ;   in  the  course  of  last  week,  I  think  it  was. 

Q.  How  long  after  the  assassination  ? 

A.  It  was  just  last  week  I  was  can  ied  down  to  the  War  Department.    Mr. 
Kelly  carried  me. 

Q.  And  you  were  examined  there  ? 

A.  Yes,  sir. 

Q.  Do  you  remember  who  examined  you  there  ? 
'  A.  No,  sir;  I  do  not  know  tiie  gentleman's  name. 

Q.  Was  what  you  stated  then  written  down  ? 

A.  Yes,  sir ;  it  was  written  down. 

Q.  When  you  were  examined  before  General  Augur,  if  that  was  the  place, 
did  you  then  make  the  same  statement  you  do  now  ? 

A.  Yes,  sir. 

Q.  You  stated  that  Mrs.  SuiTatt's  son  was  there  that  night  ? 

A.  Yes,  sir. 

Q.  What  became  of  him  1 

A.  I  do  not  know,  indeed ;   I  did  not  see  any  more  of  him. 

Q.  You  saw  him  about  9,  or  half  past  9  ? 

A.  It  was  between  8  and  9  when  she  came — after  Mr.  Weichman  and  she 
took  tea,  she  called  me  to  bring  a  pot  of  tea  to  this  gentleman. 

Q.  Was  Mr.  Weichman  in  there  also  ? 

A.  No,  sir ;  there  was  not  any  one  there  at  all ;  he  was  gone  out. 

Q.  Did  he  come  into  the  same  room  ? 


TRIAL   OP  JOHN   H.   8URRATT.  165 

A.  No,  sir ;  he  was  not  in  there  with  Mr.  Weichman. 

Q.  Who  came  in  from  the  country  with  Mrs.  Surratt  ? 

A.  Mr.  Weichman. 

Q.  Where  did  he  go  then  ? 

A.  I  suppose  he  went  up  stairs  to  hed,  or  somewhere. 

Q.  Where  was  this  gentleman  then  ? 

A.  I  do  not  know. 

C^  You  had  seen  him  before  that  7 

A.  No,  sir ;  I  had  never  seen  him  until  that  night. 

Q-  And  when  you  went  into  the  parlor  you  found  him  sitting  in  the  dining- 

»m.  and  Mrs.  Surratt  told  you  it  was  her  son  ? 

A.  Yes,  sir. 

5.  And  this  is  the  very  same  gentleman  ? 

A.  Yes,  sir ;   this  is  the  very  same  gentleman  who  was  in  there  with  Mrs. 

rratt. 

3.  And  that  you  told  to  these  gentlemen  and  they  wrote  it  down  the  Monday 

irwards  ? 

A.  Yes,  sir. 

5.  And  you  never  saw  him  before  then,  or  since  ? 

A.  No,  sir ;  never  before  nor  since,  until  one  day  last  week  when  he  was 

ught  up  here. 

2*  Ana  you  are  sure  he  is  the  very  same  man  ? 

i.  He  is  the  very  same  man  she  told  me  was  her  son. 

^,  And  the  very  same  man  you  saw.  at  her  house  ? 

k.  The  very  same  man  I  saw  the  night  after  she  came  in  from  the  country. 

I.  The  night  of  the  assassination  ? 

^.  Yes,  sir ;  the  same  night. 

j.  Yon  say  you  had  been  living  there  three  weeks ;  was  it  just  three  weeks  ? 

1.  Yes,  sir ;  three  w^eks  on  Monday. 

j.  Now  if  you  can  go  back  a  little,  are  you  quite  sure  the  gentleman  you  saw 

re,  who  she  told  you  was  her  son,  was  not  there  on  Monday,  ten  days  before 

assassination  of  the  President  ? 

k..  I  never  saw  that  gentleman  she  called  her  son  until  Friday  night 

i.  You  are  sure  it  was  Friday  night  1 

V.  Yes,  sir ;  it  was  the  Friday  night  she  came  from  the  country. 

2.  And  that  was  the  night  the  President  was  assassinated  ? 

L  Yes,  sir ;  it  was  the  very  night  she  came  from  the  country ;   it  was  the 

day  night  before  Easter  Saturday. 

^  Do  you  not  recollect  the  night  the  President  was  assassinated  ? 

L  It  was  Friday  night. 

2-  Was  that  the  same  night  you  saw  this  gentleman  there  ? 

L  It  was  the  very  night  I  saw  this  gentleman  there. 

J.  You  must  have  been  there  the  night  of  the  3d  April,  the  Monday  night  of 

week  before  the  President  was  assassinated  ? 

i.  I  was  there  a  week  in  March. 

).  Did  you  not  see  him  there  on  that  Monday  night  the  week  before  the 

»ident  was  asassinated  ? 

i.  No,  sir;  not  as  I  know  of,  I  did  not  see  him  there  the  week  before ;  I  saw 

I  on  Friday  night. 

By  Mr.  Pikrrepont  : 
I,  Yon  stated  that  you  went  into  the  dining-room,  aud  that  when  you  were 
here  Mrs.  Surratt  told  you  the  person  there  was  her  son  ;  did  you  go  there 
ronr  own  accord,  or  did  she  call  you  in  ? 
..  She  called  me  in  to  bring  a  clean  plate  and  cup ;  yes,  sir. 


166  TRIAL   OF   JOHN   H     SUBRATT. 

James  Sangstbh  sworn  and  examined. 

By  Mr.  Pibhrbpont  : 
If  your  honor  please,  in  consequence  of  this  witness  being  out  of  the  jurisdic- 
tion of  the  United  States,  we  are  obliged  to  go  a  little  out  of  our  order  so  that 
he  may  return ;  I  will  therefore  examine  him  now. 
Q.  Where  do  you  reside  ? 
A.  Montreal,  Canada. 
Q.  Where  did  you  reside  in  April,  1865  ? 
A.  Montreal. 

Q.  What  was  then  and  now  your  position  ? 
A.  Book-keeper  at  St.  Lawrence  Hall. 

Q.  Will  you  take  this  hook  and  state  to  the  court  and  jury  what  it  is  ? 
A.  That  is  an  arrival  book. 
Q.  Take  these  and  state  what  they  are. 

A.  One  contains  a  copy  of  the  bills  rendered,  and  the  other  is  a  leaf  firom  oar 
departure  book,  in  whicn  is  written  the  number  of  the  room  the  parties  occupied, 
when  they  go  away,  or  by  what  train  or  boat. 
Q.  Explain  what  you  mean  by  arrival  book. 

A.  Parties  come  there  and  raster  their  names  before  procuring  rooms^ 
Q.  Will  you  state  how  you  know  when  a  party  leaves  your  house,  what  train 
he  will  take,  and  in  what  direction  ? 

A.  The  entry  is  made  in  this  departure  book  of  the  train  or  boat  of  the  party 
going  away. 

Q.  Now  turn  to  this  arrival  book,  or  register,  as  we  are  accustomed  to  call  it, 
and  will  call  it,  to  April  G,  1865,  and  state  whether  you  see  there  the  name  of 
John  Harrison? 
A.  Yes,  sir. 

Q.  Please  now  show  the  book  to  the  court  and  then  the  jury,  (entry  pointed 
out  by  witness  to  court  and  jury.)     Now  turn  to  the  nextr  arrival  with  the  same 
name  and  tell  us  what  day  of  April  it  is  under  ? 
A.  The  18th. 

Q.  Now  can  you  tell  us  whether  the  last  is  the  same  handwriting  as  the  first! 
A.  Yes,  sir. 

Q.  Will  you  tell  us  from  that  register  at  what  time  in  the  day  that  arrival 
was? 

A.  12.30  noon. 

Q.  What  was  the  time  of  the  first  arrival  ? 
A.  10.30  a.  m. 

Q.  Will  you  now  show  these  names  to  the  jury  ?  (Register  exhibited  to  jory 
and  entries  pointed  out.)    Now  will  you  tell  the  court  and  jury,  after  the  arrival 
on  the  6th,  when  was  the  departure  of  the  man  who  entered  his  name  as  John 
Harrison;  tell  us  when  he  paid  his  bill,  when  he  departed,  and  by  what  train t 
A.  He  paid  his  bill  on  the  10th,  but  did  not  go  away. 
Q.  When  did  he  go  away  ? 
A.  He  went  away  on  the  12th. 

Q.  How  do  you  know  he  did  not  go  away  on  the  10th  1 
A.  It  is  written  opposite  the  number  of  the  room,  "  Not  gone." 
Q.  How  do  you  know  he  went  away  on  the  12th  ? 
A.  His  bill  was  paid  on  the  12th  for  two  days. 
Q.  Turn  and  see  if  there  is  anything  there  that  proves  that. 
A.  The  name  is  entered  in  this  bill  book,  with  the  amount  paid  on  the  lOtli 
four  days ;  then  it  is  on  this  departure  book  that  he  staid  two  days,  and  went 
away  on  the  12th. 

Q.  Which  way  did  he  go  ? 
A.  On  the  New  Yoik  train. 


left  the  hotel  instantly,  did  he  ? 
left  it  instantly. 

examined : 

J  Mr.  Bhadlby,  jr. : 

1  Bay  he  left  the  hotel  instantly  on  the  18th.    What  is  the  entry  on  the 

ere  is  no  entry  excepting  the  name  on  the  register, 
may  have  been  there  or  somewhere  else  ? 
may  have  been ;  he  paid  no  bill, 
d  had  DO  room  assigned  him? 
I ;  he  had  a  room  assigned  to  him. 
d  he  may  have  been  there  without  your  knowing  it  ? 
may  possibly  have  been  there. 

you  identify  this  gentleman  at  the  hotel  as  the  prisoner  at  the  bar  ? 
,  sir ;  I  cannot  say  that  I  identify  him. 

ve  you  ever  seen  the  prisoner  at  the  bar  before  you  came  here  ? 
annot  say  that. 

e  there  any  circumstances  that  would  recall  this  man  to  you  ? 
e  circumstances  were,  that  after  the  death  of  Lincoln  parties  came  there 
for  him,  and  from  the  description  they  gave  of  his  dress  I  remembered 
irty  there  answering  to  that  description, 
lat  was  this  dress  ? 

I  wore  what  is  called  a  Garibaldi  jacket, 
y  the  Court  : 
lat  is  a  Garibaldi  jacket  ? 
is  a  kind  of  straight  coat,  or  jacket,  with  a  belt  of  the  same  material. 

y  Mr.  Bradlby,  jr.  : 

you  recollect  anything  else  peculiar  about  his  dress  ? 
remember  that  he  was  tall — nothing  more  than  that.    At  the  time  of 
[uiries  I  remembered  that  such  a  party  had  been  in  the  house.     I  do 
nber  now  his  appearance  except  that  he  wore  a  Garibaldi  jacket. 


168  TRIAL  OF  JOHN  H.  8URRATT 

Q.  Was  the  hat  hard  or  soft  1 

A.  My  impreseion  is,  it  was  a  soft  hat. 
By  Mr.  Pierrepont  : 

Q.  You  saw  the  prisoner  standing  up  just  now.  What  do  you  say  as  to  height 
compared  with  this  man  ? 

A.  I  do  not  rememher  much  about  it. 

Q.  Do  you  remember  what  description  was  given  of  this  John  Harrison  by 
the  parties  who  came  to  inquire  ? 

A.  I  do  not  remember  exactly  what  the  description  was.  I  remember  they 
gave  such  a  description  that  I  knew  the  party  had  been  in  the  house ;  what  it 
was  I  do  not  recollect. 

Mr.  Pie  RUB  PONT.  I  am  informed  by  counsel  upon  the  other  side  that  they 
are  going  to  bring  in  a  dress  they  claim  to  correspond  to  that  of  this  John  Har- 
rison ;  I  will  not,  therefore,  ask  any  further  question  at  present. 

Mr.  Bradley.  I  will  say  that  we  had  sent  a  subpoena  for  Mr.  Sangsterfor 
the  purpose  of  proving  these  facts.  I  state  it  in  order  to  ascertain  how  far  it 
may  be  taken  as  a  stipulation  that  the  prisoner,  John  H.  Surratt,  on  the  6th  of 
April,  1865,  arrived  at  that  hotel,  and  entered  his  name  on  the  register  as  John 
Harrison  ;  that  he  left  there  on  the  12th  of  April,  returned  on  the  18th,  and 
again  registered  his  name  as  John  Harrison. 

Mr.  Pierrepont.  And  that  these  two  entries  are  in  his  handwriting. 

Mr.  Bradley.  That  he  registered  that  identical  name.  We  wish  to  exhibit  to 
Mr.  Sangster  not  the  dress  worn  by  the  prisoner,  but  a  dress  of  the  same  kind. 

Mr.  Pierrepont.  That  will  certainly  save  us  the  necessity  of  taking  a  veiy 
considerable  amount  of  evidence. 

The  dress  referred  to  was  here  brought  into  court,  and  the  question  asked 
by  Mr.  Bradley,  jr.,  "  Is  that  the  style  of  garment  worn  by  the  person  entering 
his  name  as  John  Harrison  on  the  occasion  referred  to  ?*'  Ans.  "  That  •is  the 
style  of  garment." 

The  court  took  a  recess  until  to-morrow  at  10  a.  m. 

Wednesday,  June  19,  1867. 

The  Court  met  at  10  a.  m. 

The  court  said  that  on  Monday  a  request  had  been  made  by  the  counsel 
for  the  defence  to  have  the  court  direct  the  prosecuting  attorneys  to  furnish 
them  with  a  list  of  the  witnesses  who  were  to  be  examined  on  the  part  of  the 
government.  He  had  carefully  considered  the  subject,  and  had  come  to  the 
conclusion  that  he  had  no  power  to  make  such  an  order,  and  that  such  an  order 
would  look  like  an  infringement  on  the  rights  of  the  prosecution  in  thus  com- 
pelling them  to  make  known  and  lay  open  their  case.  There  were  variooB  rea- 
sons why  the  order  should  not  be  made.  It  would  gratify  him  to  accommodate 
the  counsel  in  this  respect,  if  he  could  do  so  consistently  with  his  view  of  the 
law. 

In  regard  to  the  subject  proposed  yesterday,  relative  to  the  defence  being 
allowed  the  privilege  of  retaining  witnesses  and  cross-examining  them  at  any 
time  during  the  trial,  he  would  say  that  he  had  never  known  that  coarse  of 
practice  to  be  allowed,  and  could  not  see  any  good  ground  for  permitting  it  in 
this  case.  The  same  principle  shoald  apply  in  this  case  as  in  all  others,  which 
was  that  the  cross-examination  be  restricted  to  the  subject-matter  brought  oot 
on  the  examination  in  chief.  He  then  read  the  rule  as  set  forth  by  the  Supreme 
Court,  to  the  effect  that  the  defence  had  no  right  to  cross-examine  except  as  to 
matters  brought  out  on  the  examination  in  chief. 

Mr.  Bradley  said  they  were  advertised  of  a  list  of  seventy  witnesses  which 
the  prosecution  had,  but  they  knew  nothing  as  to  what  these  witnesses  would 
testify  to,  and  could  not  therefore  contradict  them,  and  they  had  acooidin^J 
asked  that  the  cross-examination  of  each  witness  be  postponed. 


TRIAL   OP   JOHN   H.  8URBATT.  169 

Carbol  Hobart,  conductor*  sworn  and  examined. 

B7  Mr.  PiBRREPONT  : 
Q.  What  is  your  present  occupation  ? 

A.  I  am  running  the  train  on  the  line  of  the  Vermont  Gentral  railroad. 
Ci-  Will  you  tell  the  jury  from  what  point  to  what  point  that  train  runs  ? 
A.  I  run  it  from  White  River  Junction  to  St.  Albans.     The  train  runs  to 
mtreal 

(J.  Where  is  this  White  River  Junction  T 

A.  It  is  on  the  line  of  the  Vermont  Gentral  railroad,  at  the  terminus  of  the 
rthem  New  Hampshire  railroad.  It  U  on  a  direct  route  from  Boston  to 
mtreal. 

Q.  State  how  far  this  is  from  Burlington. 
A.  One  hundred  and  three  miles. 

Q.  Does  the  road  from  Burlington  unite  with  this  road  of  yours  ? 
A.  Yes,  sir.  It  is  the  Vermont  Gentral  and  the  Vermont  and  Ganada  prop. 
ly.  We  run  out  of  the  Vermont  and  Ganada  road  at  Essex  Junction.  The 
^raiont  and  Ganada  starts  from  Essex  Junction,  and  runs  to  Rouse's  Point. 
fie  Vermont  Gentral  and  the  Vermont  and  Ganada  is  a  consolidated  concern. 
Q.  In  starting  from  Burlington,  Vermont,  the  road  goes  to  Rouse's  Point  ? 
A.  Yes,  sir.  I  go  twenty-four  miles  over  the  Vermont  and  Ganada  road  to 
)  to  St  Albans.  I  remain  there  one  da^,  and  the  next  morning  I  start  and 
0  twenty-four  miles  to  Rouse's  Point  That  night  I  return  and  go  back  to 
Hiile  River  Junction,  the  whole  length  of  the  route. 

Q.  So  that,  then,  the  Burlington  train  comes  up  and  meets  your  train  ? 

A  Yes,  sir ;  that  comes  up  to  Essex  Junction,  and  the  passengers  from  that 
nio  get  on  to  mine.     I  stay  that  day  and  that  night  at  St.  Albans. 

Q.  Do  you  take  the  Burlington  passengers  at  Essex  Junction  1 

A.  I  do. 

Q.  From  there  you  take  them  to  St.  Albans  ? 

L  Yes,  sir. 

Q.  At  what  time  do  you  get  to  St.  Albans,  if  you  run  regularly  ? 

A.  I  was  due  there  at  6  o'clock  in  the  morning. 

Q.  Between  the  10th  day  of  April,  1865,  and  the  20th  day  of  April,  1865, 
tate  whether  you  were  the  conductor  on  this  same  road  ? 

A.  I  was,  and  have  continued  to  be  ever  since. 

Q.  Do  you  remember  about  what  time  in  April,  1865,  the  first  boat  came  up 
le  lake,  that  left  passengers  at  Burlington  ? 

A.  I  got  the  passengers  from  the  first  trip  up  the  lake  by  the  boat  on  Tues- 
17  morning,  in  April. 

Q.  Have  you  any  memorandum  of  what  kind  of  a  night  it  was  prior  to  this 
oming  that  you  took  these  passengers ;  I  mean  as  to  whether  it  was  stormy 
•  otherwise  ? 

A  I  think  it  was  a  clear  night,  but  I  am  not  sure. 

Q.  At  what  time  in  the  morning  or  night  was  it  that  your  train  started? 

A.  I  sUirted  from  White  River  Junction  at  11.55  at  night;  I  cannot  say 
father  we  were  then  on  time  or  not,  but  that  was  the  time  of  starting. 

Q.  Where  did  you  go  ? 

A.  Directly  to  St.  Albans. 

(The  prisoner  was  here  requested  to  stand  up,  that  the  witness  might  see  him. 
He  dW  80.) 
Q.  'Will  you  tell  the  jury  what  occurred  on  the  train  that  night  that  was 

peculiar] 

^  A,  I  arrivod  at  Essex  Junction  at  5  o'clock  iu  the  morning — Tuesday  moru- 
la?- I  let\  Essex  Junction  with  the  passengers  from  Burlington  and  the  boat 
12 


170  TRIAL  OP  JOHN  H.  8UBBATT. 

on  Lake  Champlain.  As  I  went  through  the  train,  I  found  between  the  passen- 
ger car  and  the  sleeping  car  two  men  standing  on  the  platform ;  thej  were  on 
the  platform  of  the  passenger  car,  one  on  each  side  of  the  door.  I  spoke  to 
these  men,  and  asked  them  for  their  tickets.  They  said  thej  had  none,  and 
that  thej  had  no  money ;  that  thej  had  been  unfortunate. 

Q.  Please  describe  these  men  ? 

A.  One  of  them  was  tall ;  he  was  about  my  height  as  he  stood  up  in  the  car ; 
he  was  rather  slim ;  had  on  a  scull  cap-— one  of  these  close-fitting  caps — and 
short  coat.  His  vest  was  opened  down  low,  and  his  scarf  came  over  under  his 
collar  and  stuck  in  his  vest.  The  other  man  was  a  short,  thick-set  man,  of 
sandy  complexion,  with  whiskers  around  his  &ce,  and  had  a  slouched  hat  on. 

Q.  Of  what  color  were  his  whiskers  ] 

A.  Sandy,  I  think. 

Q.  Was  he  a  rough  or  genteel  looking  man  1 

A.  He  was  a  rough-looking  man. 

Q.  How  was  he  dressed  1 

A.  I  cannot  state  about  his  dress. 

Q.  With  whom  was  the  conversation  ? 

A.  With  the  tall  man. 

Q.  Stale  what  the  conversation  was  ? 

A.  I  told  him  to  come  into  the  car,  and  put  my  hand  on  his  shoulder.  He 
came  in.  He  said  that  three  of  them  had  been  to  New  York  ;  they  were  Ca- 
nadians, but  had  been  at  work  in  New  York ;  that  they  had  received  some 
money  two  nights  before — I  won't  be  positive  about  the  time — and  that  a  third 
party  who  had  been  with  them  got  up  in  the  ni^ht,  took  all  the  money  thej 
had,  and  left ;  that  he  had  left  them  without  anything — in  a  destitute  condition. 

Q.  What  were  they  trying  to  do,  did  he  say  ? 

A.  He  said  they  must  go  to  Canada ;  that  they  wanted  to  get  home ;  that 
their  friends  livecl  in  Canada,  and  that  when  they  got  home  they  would  get 
plenty  of  money,  and  would  remit  the  amount  of  fare  to  me. 

Q.  What  further? 

A.  1  told  them  that  I  could  not  carry  them.  I  spoke  to  them  of  the  necessity 
of  having  money  if  they  were  going  to  travel,  and  that  I  could  not  carry  them 
throueh  free.  They  expressed  themselves  as  very  anxious  to  get  through.  I 
told  them  that  1  should  leave  them  at  the  next  station — Milton — between  Essex 
Junction  and  St.  Albans.  I  was  busy  when  I  got  there  with  the  train,  and  so 
forgot  them.  I  went  through  the  train  again  after  leaving  Milton,  and  foond 
them  in  the  rear  end  of  the  car.  I  trif»d  them  again  to  see  if  they  had  not  some 
money.  They  said  they  had  none,  but  that  they  must  go  to  St  Albans ;  that 
when  they  got  there  they  could  foot  it.  They  inquired  of  me  how  far  it  was  to 
Franklin ;  that  they  were  going  through  the  country.  I  asked  them  how  they 
were  going  to  get  there  ?     They  said  they  were  going  afoot. 

Q.  State  where  Franklin  is  ? 

A.  Franklin  lies  northwest  of  St.  Albans  fourteen  miles ;  I  think  the  distance 
is  about  four  miles  from  the  line — the  Canada  line. 

Q.  When  you  asked  them  how  they  were  going  to  get  to  Franklin,  what  did 
they  say  ? 

A.  They  said  that  they  would  have  to  go  afoot ;  that  they  had  no  money  to 
pay  their  fare  on  the  stage ;  that  if  I  would  carry  them  to  St.  Albans  they 
would  try  and  get  home,  or  where  their  friends  were. 

Q.  Who  did  this  talking? 

A.  The  tall  man. 

Q.  In  the  progress  of  this  talk,  or  in  the  beginning  of  it,  state  what  there 
was,  if  anythmg,  peculiar  about  their  dialect. 

A.  This  tall  man  tried  to  use  broken  English,  as  if  he  were  a  Canuck,  but 


I 

J 


TRUL   OP  JOHN  H.   SURRATT.  171 

ally  he  would  get  a  little  in  earnest  for  fear  he  was  to  be  put  off,  and 
would  drop  the  Canuck  and  speak  good  sanare  English, 
liat  did  you  discover  as  to  his  square  English  finally? 
tiat  was  what  aroused  my  suspicions  that  things  were  not  all  right;  that 
re  travelling  incog,,  and  I  urged  the  matter  more  than  I  would  if  they 
1  really  poor  people  and  I  had  had  strong  proof  of  that  fact. 
id  anything  happen  in  relation  to  the  position  of  the  tall  man*s  hands 
If  so,  what  ? 

is  hands  were  not  like  those  of  a  laboring  man ;  were  not  like  those  of  a 
Q  who  had  been  used  to  hard  labor.     They  were  white  and  delicate. 
>a  took  them  to  St.  Albans  ? 
did. 

lien  they  got  to  St.  Albans  what  did  they  do  1 

bey  went  out  into  the  yard,  on  to  Lake  street    I  went  into  the  general, 
fice  to  attend  to  my  business, 
d  you  see  them  any  more  that  day  } 
will  not  be  positive.     I  cannot  say  whether  I  did  or  not. 
you  did,  it  was  soon  after,  I  suppose  ? 

»,  sir ;  after  I  had  done  my  work — about  ten  minutes,  perhi^ps* 
m  you  tell  us  the  time  the  train  went  on  from  St.  Albans  to  Montreal 
1  got  there  ?  or  what  time  it  would  be  due  in  Montreal  ? 
ae  there  at  9.45  a.  m. 
lat  same  morning  ] 
»,  sir. 
t  Montreal  ? 
»,  sir. 

&ve  you  seen  anybody  in  court  to-day  that  looks  like  the  tall  man  that 
I 

le  man  that  stood  up  before  me  resembles  the  man  that  I  saw  very 
[  should  not  recognize  his  face.    He  had  at  that  time  a  moustache,  with 
Lers  on  his  chin.     He  had  a  cap  on. 
)w  did  he  wear  his  skull  cap  ? 

was  drawn  down  over  his  forehead,  in  the  usual  way. 
lything  on  one  side  at  all  ? 
)t  that  I  noticed, 
d  you   hear  anything  soon   after  that  about  a  handkerchief  at  St. 

BRRICK.  That  is  hardly  admissible. 

IBRRBPONT.  I  mean  a  handkerchief  with  Surratt's  mark  on  it — the 
"J.  H.  Surratt." 

radlby.  That  doesn't  make  any  difference. 

OURT.  Not  anything  that  he  heard.     If  he  saw  anything  of  the  hand- 
it  would  be  proper  for  him  to  state  it,  but  not  what  he  heard. 
IBRRBPONT.  I  do  uot  bclicve  that  he  did  see  it.    That's  all  we  wish 
witness. 

I  the  cross-examination  was  proceeded  with  the  following  agreement  was 
nto  by  counsel  on  either  side : 

agree  that  the  time-tables  of  any  railroad  in  the  United  States,  duly 
from  the  office  of  the  company,  for  the  month  of  April,  1865,  and  cou- 
ith  the  routes  from  the  city  of  Washington  to  Canada,  and  from  Detroit 
ec,  may  be  put  in  evidence,  and  shall  be  received  without  objection ;  and». 
ibat  these  time-tables  shall  be  produced  on  cither  side  before  the  close 
:a8e,  in  the  regular  process  of  the  examination.'' 


172  TRIAL   OP  JOHN   H    8URBATT. 

Crose-examination : 
By  Mr.  Bradlby  : 

Q.  Have  you  any  time-tables  abowing  wben  tbe  first  steamboat  went  up  the 
lake  to  Burlington  from  White  Hall  ] 

A.  I  have  no  means  of  knowing  tbe  time  tbat  it  arrived  at  Burlington — ^that 
is,  the  day  of  the  month.  I  know  it  was  on  a  Tuesday  morning  that  I  took  tbe 
passengers  from  the  first  trip  of  the  boat,  because  her  trips  are  only  IHiesdays 
and  Fridays. 

Q.  Can  you  ascertain  the  day  of  the  month,  when  you  return  home  ? 

A.  I  cannot.  There  is  no  way  that  I  can  get  the  date,  sure.  The  accounts 
go  in  regularly  every  trip.  There  is  no  difference  in  them ;  they  are  all  alike. 
I  could  send  you  the  account  for  the  month ;  that  is  all. 

Q.  You  do  not  know,  as  I  understand  from  your  testimony,  whether  these 
parties  came  by  the  steamboat  to  Burlington,  or  not  ? 

A.  They  told  me  that  they  lay  in  the  depot  at  Burlington  all  night. 

Q.  You  started  the  next  morning  at  5.55  t 

A.  No,  sir. 

Q.  What  train  brought  them  to  you  ? 

A.  It  is  a  short  train.  There  is  a  branch  road  from  Burlington  to  Essex 
Junction.     I  think  there  are  seven  miles  of  road  there. 

Q.  They  arrived,  then,  at  Essex  Junction  before  5  55  in  the  morning  ? 

A.  I  think,  at  that  season,  5  o'clock  in  the  morning  was  the  time  for  leaving 
Essex.  I  left  White  Hall  Junction  at  11.55;  arrived  at  Essex  Junction  at  o, 
and  left  there  immediately,  as  soon  as  1  could  get  the  passengers  removed  and 
take  on  baggage,  6zc. ;  and  then  reached  St.  Albans,  twenty -five  miles  further 
north,  at  G  o'clock. 

Q.  How  far  beyond  St.  Albans  did  you  run  ? 

A.  I  go  twenty-four  miles  to  Rouse's  Point  the  next  morning. 

Q.  From  where? 

A.  From  St.  Albans. 

Q.  What  train  took  up  your  passengers  at  St.  Albans,  and  went  on*  im- 
mediately ? 

A.  It  was  the  morning  mail  train  out  of  St.  Albans,  going  west. 

Q.  To  Ogdcnsburg  and  Montreal  1 

A.  Yes,  sir.  Tbe  passengers  for  Ogdensburg  and  Montreal  went  to  Rouse's 
Point  on  the  train,  and  then  they  separated. 

Q.  What  interval  was  there  between  your  arrival  at  St.  Albans  and  the  de- 
parture of  the  train  for  Rouse's  Point  ? 

A.  1  think  the  time  allowed  for  breakfast  at  that  season  was  twenty  or  thirty 
minutes.  At  Rouse's  Point  there  are  two  trains  running  northwest — one  to 
Ogdensburg  and  the  other  to  Montreal. 

Q.  What  time  does  that  train  to  Montreal  arrive  in  Montreal  t 

A.  At  9.45,  I  think. 

Q.  I  understand  you  ran  up  to  Rouse's  Point  in  the  morning  after  your 
arrival  at  St.  Albans,  and  made  a  long  stay  there  ? 

A.  Yes,  sir ;  I  think  from  7.15  a.  m.  to  5.45  in  the  evening.  I  took  my 
departure  for  White  River  Junction  at  5.45  in  the  evening. 

Q.  At  what  time  does  the  afternoon  train  which  you  took  at  Rouse's  Point 
leave  Montreal  1 

A.  I  think,  at  that  season,  it  left  at  3  o'clock  in  the  afternoon. 

Q.  Did  the  passengers,  by  the  Montreal  train  reach  St.  Albans  in  time  to 
connect  with  you  at  5.45  ? 

A.  They  came  back  to  Rouse's  Point  at  5.30,  I  think — giving  me  fifteen 
minutes  in  which  to  change  passengers,  baggage,  &c. 

Q.  That  is  the  connecting  train  1 

A.  Yes,  sir. 


TBIAL  OF  JOHN  H.   8UBRATT.  173 

Q.  Wliat  time  do  yon  reach  White  River  Junctioa  ?! 

A.  1  reached  White  River  Jnnction,  at  that  season,  at  1  o'clock  a.  m. — in  the 
night. 

Q.  What  train,  coming  south,  takes  up  your  passengers  at  White  River 
Junction  ] 

A.  At  that  time  it  was  a  train  going  directly  through  Springfield.  We  have 
two  roads  to  New  York— one  by  way  of  Springfield,  and  the  other  by  way  of 
Albany. 

Q.  Taking  the  New  York  road  first,  what  time  did  the  train  leave  which  takes 
your  passengers  ?     What  time  does  that  train  leave  for  Albany  ? 

A.  It  leaves  for  Essex  Junction  at  8.40, 1  think,  in  the  evening,  going  to 
Barlington  and  Albany.  Left  White  River  Junction  at  that  time  at  1.10,  I 
think,  for  Springfield. 

Q.  The  train  from  New  York,  then,  leaves  at  Essex  Junction  ? 

A .  Yes,  sir ;  for  New  York  by  way  of  Troy  and  Albany. 

Q.  Is  there  any  other  route  except  the  Springfield  route  ? 

A.  No,  sir ;  except  by  way  of  the  boats  from  Rouse's  Point.  The  boats  run 
from  Lake  Ghamplain  to  White  Hall,  leaving  Rouse's  Point  at  5.45. 

Q.  Do  you  recollect  whether  the  tall  one  of  the  two  persons  who  went  on  that 
trip  ¥nth  you  had  any  "  goatee,"  as  it  is  called  ? 

A.  I  think  not,  though  I  would  not  be  sure. 

Q.  Was  not  his  face  quite  clean  ? 

A.  Otherwise  than  a  slight  moustache. 

Q.  Do  you  recollect  his  eyes  at  all  ? 

A.  I  could  not  state  positively  anything  about  them. 

Q.  Did  not  his  skin  strike  you  as  being  quite  fair? 

A.  No,  sir ;  I  should  not  think  he  looked  very  fair.  He  was  poorly  clad  and 
looked  as  if  he  had  been  without  his  sleep  for  some  time. 

Q.  The  taller  one  of  the  two  1 

A.  Yes,  sir ;  he  did  all  the  talking  that  was  done.  He  looked  rather  rusty — 
not  particularly  fair. 

Q.  Do  you  recollect  whether  or  not,  in  the  month  of  April,  especially  the 
April  of  1865,  the  route  from  Albany  to  Burlington  was  very  irregular  ? 

A.  The  boats  were  irregular  in  their  arrivals  at  White  Hall.  They  were  not 
80  irregular  out  of  Burlington. 

Q.  Did  they  fail  to  make  their  connection  with  you  1 

A.  Yes,  sir ;  they  did  on  the  beginning  of  navigation. 

Q.  That  is  a  daily  route,  is  it  1 

A.  Yes,  sir. 

Q.  Did  you  make  more  than  a  trip  a  day  ? 

A.  No,  sir.  It  takes  the  boats  some  twelve  or  fourteen  hours  to  make  the 
passage  over  the  lake.     They  go  up  one  day  and  come  down  the  next. 

Q.  Do  you  know  whether  that  same  route  goes  to  Rutland  or  not  ? 

A.  0,  yes,  sir ;  we  connect  with  a  train  through  to  Rutland,  at  Saratoga, 
Troy,  and  Albany. 

Q.  Does  the  boat  also  go  to  Rutland  ? 

A.  No,  sir ;  it  goes  to  White  Hall. 

Q.  Can  you  state  whether  or  not  the  Troy  train  to  Rutland  connects  with 
any  train  immediately-7-morning  train  ? 

A.  Yes,  sir ;  I  think  that  train  connected  with  us  as  it  does  now.  I  take  the 
sleeping  car  that  comes  from  Troy  on  at  Essex  Junction. 

Q.  At  that  time,  according  to  your  recollection,  the  morning  passengers  from 
Troy  did  not  lie  over  at  Rutland  for  the  evening  train  ? 

A.  I  think  I  received  those  morning  paf^sengers  from  Troy  and  Albany,  with 
^e  sleeping  car,  on  my  train  at  Essex. 
Q.  Has  the  arrangement  been  altered  since  ? 


174  TRIAL   OF  JOHN  H.   8URRATT. 

A.  No,  sir. 

Q.  If  a  passenger  leave  Troy  in  the  morning,  going  north,  does  the  train  go 
through,  or  does  he  lie  over  in  Rutland  till  the  night  train  passes  and  then 
goes  on  ? 

A.  No,  sir:  that  train  connects  with  the  Rutland  train.  Some  few  weeks 
ago  they  did  not  run  in  connection  with  our  express  train.  This  irregularity, 
however,  continued  but  a  short  time.  It  was  caused  by  some  miBunderstanding 
among  the  managers  of  the  road. 

Re-examination  by  Mr.  Pibrrbpont: 

Q.  I  understood  you  to  state,  that  in  the  beginning  of  the  navigation  the 
boats  were  sometimes  irregular? 

A.  Yes,  sir. 

Q.  I  understand  you  to  state,  also,  that  this  train  that  you  speak  of  contained 
the  first  boat-load  of  the  season ;  am  I  right? 

A.  Yes,  sir ;  the  first  boat-load  on  the  lake  for  that  season. 

Q.  I  understand  you  to  state  that,  after  you  arrived  at  St.  Albans,  you  never 
saw  these  two  men  again  ? 

A.  I  am  not  positive ;  I  was  questioned  by  a  gentleman  as  I  was  passing  to 
my  boarding  place. 

(Mr.  Merrick  objected.     Objection  sustained.) 

Mr.  Bradley  desiring  some  rule  laid  down  as  to  the  re-examination  of  wit- 
nesses, after  the  cross-examination  had  been  concluded, 

The  Court  said:  The  rule  will  be,  that  wherever  there  is  any  doubt  on  the 
part  of  one  of  the  counsel  as  to  what  the  answer  of  a  witness  on  cross-examina- 
tion has  been,  he  may  repeat  the  question  to  the  witness,  and  ascertain  from  him 
what  answer  he  had  given. 

Charles  H.  Blin\,  clerk,  Weldou  House,  St.  Albans,  Vermont;  residence, 
St.  Albans,  Vermont. 

By  Mr.  Pibrrbpont: 

Q.  What  was  your  employment,  and  where  were  you  employed,  between  the 
10th  and  the  15th  of  April,  1865? 

A.  Between  the  10th  and  the  15th  of  April,  1865, 1  was  employed  as  night 
watchman  in  the  passenger  depot  of  the  Vermont  Central  depot  in  Burlington, 
Vermont. 

Q.  Do  you  remember  when  the  first  passenger  boat  of  that  season  landed  its 
passengers  at  Burlington  that  season  ? 

A.  The  first  trip  made  by  the  boat  that  season  was  the  17th  of  April. 

Q.  What  day  of  the  week  ? 

A.  Monday. 

Q.  Can  you  tell  whether  it  arrived  in  time  for  the  passengers  to  take  the 
train  ? 

A.  It  was  four  hours  late 

Q.  At  what  time  did  it  arrive  ? 

A.  About  twelve  o'clock  in  the  night. 

Q.  Were  you  on  watch  that  night  in  the  depot  ? 

A.  Yes,  sir. 

Q.  Did  you  see  two  men  in  that  depot  ?     If  so,  tell  us  about  them. 

A.  There  were  two  men  who  came  in  from  the  boat;  one  was  a  tall  man,«Dfl 
the  other  shorter.  They  requested  permission  to  sleep  in  the  depot  until  the 
train  left  for  Montreal. 

Q.  At  what  time  did  the  train  .leave  ? 

A.  The  train  left  at  4.20  the  next  morning. 

Q.  Where  did  that  boat  come  from  ? 


TRUL  OF  JOHN  H.    SURBATT.  175 

A.  It  camo  from  White  Hall,  and  connects  with  the  cars  from  ^iew  York 
city.    It  runs  from  White  Hall  to  Rouse's  Point,  on  the  lake. 

Q.  State  what  arrangement,  if  any,  was  made  between  joa  and  them,  about 
sleepinf^  there. 
A.  They  requested  permission  to  sleep  on  the  benches  in  the  depot. 

Q   Which  one  made  the  request  1 

A.  The  taller  gentleman ;  he  did  all  the  talking. 

Q.  What  did  he  say  1 

A .  He  wished  to  know  if  he  could  sleep  there.  People  very  often  come  along 
in  that  way,  when  the  cars  from  the  Rutland  road  were  late. 

Q.  I  am  merely  asking  what  he  said  ? 

A.  He  wished  to  know  if  he  could  sleep  there.  I  asked  him  if  he  did  not 
wieh  to  go  to  a  hotel.  He  said  he  thought  not ;  he  was  going  to  Montreal  on 
the  early  train,  and  would  like  to  sleep  there  in  the  depot. 

Q.  Did  you  call  him  1 

A.  Yes,  sir,  in  time  for  the  train. 

Q.  At  what  time  did  you  call  him  1 

A.  I  should  think  4  o'clock. 

Q.  In  the  morning  ? 

A.  Yes,  sir. 

Q.  That  was  on  Tuesday? 

A.  Yes,  sir,  that  was  on  Tuesday  morning,  the  18th. 

Q.  After  he  went  out  did  you  see  anything  where  he  had  been  lying  ? 

A.  I  did  not. 

Q.  Any  article  ? 

A.  I  did  not,  until  daylight. 

Q.  Did  you  at  daylight  1 

A  Yes,  sir. 

Q.  Have  you  it  there  ? 

A.  I  have,  or  something  that  resembles  it  very  much. 

Q.  Just  look  at  it  and  state  if  yon  recognize  it  as  the  same. 

A.  (After  examining  it.)     I  do  recognize  that  as  the  same  handkerchief. 

Q.  Where,  in  relation  to  where  the  tall  man  slept,  was  that  1 

A.  That  was  near  the  seat,  on  the  floor,  where  his  head  lay. 

(The  handkerchief  was  here  shown  to  the  jury.) 

Q.  Is  there  any  navne  on  it  ? 

A  Yes,  sir  ;  "  J.  H.  Surratt,  2." 

Mr.  Bradley  : 
The  name  is  all  spelt  right ;  but  we  cannot  admit  the  handwriting.     If  it  is 
tis,  you  will  have  to  prove  it. 

The  Court  : 
Q.  When  you  picked  it  up  was  that  name  on  it  ? 
A.  It  was. 

By  Mr.  Pierrbpont  : 
Q.  What  did  you  do  with  the  handkerchief  after  you  picked  it  up  ? 
A   1  did  not  discover  the  name  until  three  hours  afterwards. 
Q.  What  did  you  do  with  it  after  you  discovered  the  name  ? 
A.  I  gave  it  to  my  mother  to  be  washed. 

Q.  How  soon  after  you  discovered  the  name  did  you  make  known  the  fact 
^liat  you  did  discover  this  handkerchief  with  the  name  on  it  ? 
A.  I  made  it  known  during  the  day,  I  presume. 
Q.  To  whom  did  you  make  it  known  7 

A.  I  showed  it  first  to  the  agent  of  the  railroad  company  at  Burlington. 
Q.  Do  you  know  whether  he  communicated  the  fact  to  St.  Albans  ? 


176  TRIAL   OF   JOHN  H.   SUBBATT. 

A.  I  scarcely  think  he  did. 

Q.  I  say,  do  yon  know  ? 

A.  I  do  not. 

Q.  Did  you  see  either  of  these  men  after  they  left  1 

A.  I  did  not. 

SciPiANO  Grillo,  restaurant  keeper  and  musician,  residence  navy  yard, 
sworn  and  examined. 

By  Mr.  Pibrrepont: 

Q.  Where  were  you  living  in  the  month  of  April,  1865  ? 

A.  My  residence  was  at  the  navy  yard. 

Q.  What  business  had  you  here  in  the  city  ? 

A.  I  kept  a  restaurant  under  Ford's  theatre. 

Q.  Did  you  know  John  Wilkes  Booth  by  sight  1 

A.  Yes,  sir. 

Q.  When  did  you  first  see  him  ? 

A.  I  knew  him  for  five  or  six  years  before  the  assassination.  I  have  been 
in  the  profession  myself. 

Q.  As  an  actor  ? 

A.  No,  sir,  as  a  musician. 

Q.  Did  you  know  David  Herold,  one  of  those  tried  for  conspiracy  ? 

A.  Yes,  sir. 

Q.  Did  you  know  George  Atzerodt  ? 

A.  By  sight. 

Q.  When  did  you  see  Herold  last,  before  the  assassination  ? 

A.  I  saw  him  near  about  5  o'clock. 

Q.  On  the  same  day  1 

A.  Yes,  sir. 

Q.  And  when,  before  the  assassination,  did  you  last  see  Atzerodt  ? 

A.  About  ten  minutes  after  that;  we  walked  together  down  Pennsyh-ania 
avenue,  and  met  Atzerodt  at  the  Kirk  wood  House,  on  the  steps. 

Q.  Who  walked  with  you  ] 

A.  Herold. 

Q.  How  came  you  to  take  this  walk  with  Herold  ? 

A.  As  I  was  coming  down  Tenth  street  I  met  Herold,  and  he  asked  me  if  I 
had  seen  John  Wilkes  Booth.  I  told  him  I  had;  that  I  had  seen  him  in  the 
morning  about  1 1  o'clock ;  that  he  had  some  letters  which  he  had  received ;  his 
letters  used  to  come  addressed  to  the  theatre. 

Q.  Proceed  and  state  what  further  occurred. 

A.  I  told  him  that  I  saw  him  a  little  after  4,  on  horseback ;  that  he  stopped 
in  my  place  and  got  a  drink. 

Q.  What  kind  of  a  horse  was  it  that  he  rode  ? 

A.  A  small  horse — gray.  I  believe,  as  far  as  my  recollection  serves  me.  Her- 
old after  this  said  to  me,  *•  Do  you  know  that  General  Lee  is  in  town  V*  I  toU 
him  no,  I  did  not ;  that  I  hadn't  heard  of  it.  He  says  "  Yes,  he  is  stopping 
down  at  Willards*." 

Q.  This,  I  understand  you,  was  the  day  of  the  assassination  ? 

A.  Yes,  sir;  in  the  afternoon.  Says  he,  "  Yes,  he  is  stopping  at  Willard«'; 
let's  take  a  walk  up  there,  and  find  out  something  about  it."  We  started  api 
and  as  we  got  to  the  Kirkwood  House  we  met  Atzerodt  sitting  on  the  stepi> 
He  stopped  to  talk  to  him,  and  I  walked  ahead  as  far  as  the  comer  to  wait  for 
him.  He  stopped  wii h  him  two  or  three  minutes,  and  then  came  back,  and  walked 
with  me  up  to  Willards'.  After  ye  got  inside  of  Willards',  Herold  met  two 
young  men.  They  talked  together  awhile ;  I  do  not  know  what  they  said* 
As  they  were  in  the  act  of  parting,  Herold  says  :  ''  You  are  going  to-night,  ain't 
you  V*    One  of  the  young  men  answered  and  said,  "  Yes." 


j 


TRUL  OF  JOHN   H.   8URRATT.  177 

).  In  what  tone  of  voice  waa  tfie  talk  before  that  ? 
^  In  a  low  tone.    Thej  were  apart  to  themselveB. 

3.  Was  there  anything  more  said  that  jou  could  hear  other  than  what  jou  have 
teated  ? 
A..  No,  sir. 

Q.  What  did  this  man  who  said  he  was  going  to-night  do,  after  sajing  '<  yes." 
A.  Nothing.  We  left  him  and  went  out  toward  Grover's  theatre.  I  noticed 
;rold  walking  a  little  lame,  and  says  to  him,  "What's  the  matter]  You  are 
Jking  lame."  He  replied,  "  Nothing ;  my  boot  hurts  me."  When  we  got 
hind  the  park  there,  he  pulled  up  his  pants  to  fix  his  boot.  I  then  noticed 
&t  he  had,  run  down  in  nis  boot  leg,  a  big  dagger,  the  handle  of  which  was 
or  or  five  inches  above  the  leg  of  the  boot.  I  said  to  him,  "  What  do  you 
rnt  to  carry  that  for  ?"  He  answered,  '^  I  am  going  into  the  country  to-ni^ht 
horseback,  and  it  will  be  handy  there."  I  laughed  at  him,  and  said  '*  You 
i*t  going  to  kill  anybody  with  that  ?"  I  left  him  at  the  door  of  Greary's  bil- 
rd  saloon.     I  went  up  stairs,  and  he  walked  ahead. 

Q.  Look  about  in  this  room  and  see  if  you  see  anybody  that  looks  like  the 
m  who  said  "  yes,"  when  Herold  asked  him  if  he  was  going  to-night  ? 
A.  Well,  the  gentleman,  I  believe,  is  that  man,  (pointing  to  the  prisoner,) 
1 1  don't  know.    As  far  as  my  knowledge  goes,  he  looks  very  much  like 
D.    He  had  no  beard,  however. 
Q.  Had  he  a  moustache  ? 

A.  A  little  moustache,  as  far  as  my  knowledge  goes.   I  never  was  acquainted 
th  the  man  before.    Who  he  resembled  I  could  not  exactly  remember. 
Q.  You  did  not  see  anybody  that  told  you  that  Greneral  Lee  was  there,  did 
a? 
A.  I  inquired  there,  and  found  there  was  no  General  Lee  about. 

By  the  District  Attorxev  : 

(J.  Were  you  in  partnership  with  Mr.  Taltaval  ? 

A.  Yes,  sir. 

Q.  What  sort  of  a  hat  did  this  person  have  on  in  Willards'  Hotel — the  one 

It  resembled  the  prisoner  ? 

A.  As  far  as  my  knowledge  goes,  I  believe  it  was  a  black  hat.    It  was  a 

>ached  hat  with  a  stiff  brim. 

Cross-examination : 

By  Mr.  Bradley  : 
Q.  You  say  you  have  been  in  the  profession  as  a  musician  of  the  theatre 
oQTBelf,  and  had  a  restaurant  close  by  Ford's  theatre  at  this  time ;  I  will  ask 
ou  if  you  know  Mr.  Gifford  1 

A.  I  do. 

Q.  Do  you  know  Mr.  Carlan,  who  used  to  be  connected  there  ? 

A.  Yes,  sir. 

Q.  Do  you  know  an  actor  named  Hest? 

A.  Yes,  sir. 

Q«  On  the  night  of  the  assassination  did  you  see  cither  of  those  three,  or  any 
^f  Aem,  out  on  the  pavement  in  front  of  Ford's  theatre  1 

A.  No,  sir.  I  was  not  out  of  the  place  myself.  I  was  in  the  orchestra  be- 
^l^een  the  first  and  second  acts ;  but  in  the  third  act  we  had  nothing  to  do, 
(being  always  dismissed  after  the  curtain  is  down,)  and  so  I  went  out  and  went 
'Wide  of  my  place. 

Q>  Do  you  recuUect  of  seeing  any  soldiers  sitting  out  on  the  platform  there  ? 

A.  Not  that  I  remember.    There  were  a  great  many  people  out  there  all  the 

Q'  Did  yon  see  any  one  sitting  on  the  carriage  platform  ? 


178  TBUL  OF  JOHN  H.   SUBRATT. 

A.  I  could  not  tell,  because  I  did  not  take  any  notice. 

Q.  Did  70U  return  to  the  theatre  again  before  the  assassination  of  the  Presi- 
dent? 

A.  No,  sir. 

Q.  You  were  in  your  restaurant. 

A.  Yes,  sir. 

Q.  Do  you  recollect  of  Booth  coming  in  there  7 

A.  Yes,  sir.     I  was  behind  the  bar  at  the  time. 

Q.  Was  anybody  with  him  ? 

A.  No,  sir.     He  came  alone. 

Q.  How  louff  was  that  before  you  heard  of  the  assassination  ? 

A.  It  must  have  been  between  eight  or  ten  minutes,  or  fifteen  minutes ;  I 
cannot  remember  exactly. 

Q.  Will  you  describe,  if  you  recollect,  what  light  there  was  in  front  of  the 
theatre,  and  where  it  was  placed  that  night? 

A.  We  had  two  lights  outside  in  the  street ;  then  there  were  two  lamps  in 
front  of  the  theatre.     The  light  is  very  brilliant  there. 

Q.  Do  you  recollect  where  the  clock  is  placed  in  that  theatre  1 

A.  Yes,  sir ;  in  the  passage  as  you  enter  the  building. 

Q.  On  the  right-hand  ? 

A.  In  the  centre. 

By  a JuBOR: 

Q.  In  the  centre  of  the  doorway  ? 

A.  In  the  centre  of  the  doorway  nearest  the  alley.  On  the  one  side  is  the 
ticket  office,  and  on  the  other  is  the  door  going  into  the  theatre;  and  in  the  cen- 
tre of  that  door- way  is  the  clock. 

Q.  Fixed  like  the  clock  in  this  room  ? 

A.  Yes,  sir. 

At  this  point  the  court  took  a  recess  of  half  an  hour. 

AFTERNOON    SESSION. 

John  T.  Tibbett  sworn  and  examined. 
By  the  District  Attorney  : 

Q.  Where  do  you  reside  ? 

A.  In  Prince  George's  county,  Maryland. 

Q.  How  long  have  you  been  liviug  in  Prince  George's  county  ? 

A.  I  lived  there  twenty-two  years  first ;  I  left  home  then  and  went  soldiering. 
I  went  back  there  and  staid  twelve  months,  and  I  have  been  here  in  Wash- 
ington ever  since. 

Q.  You  are  now  living  then  in  the  city  ? 

A.  Yes,  sir. 

Q.  In  what  part  of  the  city  ? 

A.  On  the  island,  near  the  Washington  monument. 

Q.  What  is  your  business  ? 

A.  Blacksmithing. 

Q.  How  long  have  you  lived  in  Washington  ? 

A.  I  came  to  Washington  about  the  10th  of  December  last. 

Q.  You  say  you  were  in  the  army  a  portion  of  the  lime,  in  what  regiment' 

A.  The  first  District  Columbia  cavalry. 

Q.  You  were  enlisted  in  this  city  ? 

A.  Yes,  sir. 

Q.  How  long  were  you  in  the  army  ? 

A.  I  enlisted  August  5,  1863,  and  served  until  November,  1865. 

Q.  What  was  your  business  in  1863  and  1864  ? 


TBIAL  OF  JOHN  H.  SURSATT.  179 

A.  A  part  of  the  time  in  1863  I  was  soldiering,  and  a  part  of  that  year  I 
was  carrving  the  mail  from  Washington  to  Charlotte  Hall. 

Q.  Where  is  Charlotte  HalH 

A.  I  disremember  whether  it  is  in  St  Mary's  or  Charles  coanty,  I  was  not 
veiy  mach  acquainted  in  those  parts. 

Q.  How  long  were  you  engaged  in  the  business  of  carrying  the  mail  between 
those  two  points  1 

A.  I  am  positive  I  was  more  than  a  month. 

Q.  State  to  the  jury  if  you  know  John  H.  Surratt,  the  prisoner  at  the  bar  t 

A.  I  do. 

Q.  How  long  have  you  known  him  ? 

A.  I  have  known  John  H.  Surratt  for  the  last  ten  or  eleven  years. 

Q.  Have  you  been  in  the  habit  of  seeing  him  frequently  I 

A.  I  have,  in  passing  and  repassing  from  Washington  down  to  my  father's, 
before  carrying  the  mail. 

Q.  Did  you  know  his  mother,  Mrs.  Mary  Surratt  1 

A.  I  did. 

Q.  Did  yon  ever  see  the  mother  and  son  together  ? 

A.  Yes,  sir,  I  have. 

Q.  Have  you  ever  heard  them  conversing  in  the  presence  of  each  other  in  re- 
ference to  Abraham  Lincoln,  late  President  of  the  United  States  ?  If  so,  state 
what  yon  have  heard  them  say  ? 

A.  1  have  heard  them  conversing  but  very  little  together.  Mr.  John  H. 
Snrratt  had  but  very  little  to  say  when  I  would  be  passing  there,  but  I  have 
lieard  Mrs.  Surratt  say 

Mr.  Bradlbv.  I  would  like  to  know  upon  what  ground  this  evidence  is 


The  Court.  Do  you  propose  to  prove  the  conversation  between  the  prisoner 
and  Mrs.  Snrratt  in  reference  to  Abraham  Lincoln  ? 

Tbe  District  Attorney.  Yes,  sir ;  the  conversation  in  presence  of  the  pris- 
oner, expressing  malice  towards  the  President,  and  pointing  directly  towards 
liis  assassination. 

Mr.  Bradlby.  How  long  before  the  assassination  ? 

Mr.  PiERRBPONT.  We  do  not  care  how  long. 

Mr.  Bradlky.  Yon  will  hardly  say  a  conspiracy  was  formed  in  1863. 

Mr.  PiERRBPONT.  We  will  show,  before  we  are  through,  that  the  conspiracy 
'Wm  formed  in  I8G3. 

Mr.  Bradlky.  I  think  the  evidence  is  not  competent,  but  we  waive  any 
«bjfxtion  to  it. 

Witness.  I  heard  Mrs.  Surratt  say 

Mr.  Merrick.  In  the  presence  of  the  prisoner  at  the  bar  ? 

Witness  Yes.  I  heard  her  say  she  would  give  any  one  $1,000  if  they 
woTiId  kill  Lincoln. 

Q.  State  if  you  heard   any  other  declarations  by  the  prisoner,  or  by  his 
,  ttf.ther  in  presence  of  the  prisoner,  during  this  period  of  time ;  and  if  so,  state 
^bat  th«y  were. 

A.  I  du  not  recollect  anything  more,  except  as  I  would  hear  them  talk  occa- 
•ionalljr  as  I  would  pass,  abusing  the  President ;  I  paid  very  little  attention  to 

The  District  Attornby.  I  propose  now  to  show  by  this  witness  that  in 

speaking  of  the  President  of  the  United  States  they  made  use  of  the  most 

\  opprobrious  lanpruage,  expressing  feelings  of   personal   hostility.     I  oflfer  this 

,  *p['ii  the  general  principle  that  in  a  murder  case  1  may  show  the  feelings  of  the 

I  pnsoner  towards  the  deceased,  and  especially  that  he  used  expressions  of  malice 

^^^ardg  him  prior  to  the  commission  of  the  crime, 
^t.  BftAULBY.  The  witness  has  already  said  that  he  recollects  nothing  fur- 


180  TRIA.L  OF  JOHN  H.   8URRATT. 

tlier,  except  that  he  has  heard  a  kind  of  abase  of  the  President.  If  the  object 
of  the  gentleman  is  to  know  what  kind  of  abase,  it  may  be  obtained  possibly 
in  some  other  way ;  I  do  not  think  in  this  way  it  can  be  reached. 

Mr.  PiKRBBPONT.  We  put  the  question  directly,  then. 

Q.  State  what  you  have  heard  said. 

A.  I  have  not  heard  much  pass ;  only  occasionally  I  woald  hear  abuse. 

Q.  State  the  words  that  were  said. 

A.  I  cannot  recollect  what  the  words  were.  I  think,  I  will  not  be  positive, 
I  have  heard  Mr.  Surratt  say 

Mr.  Bradley.  You  need  not  state  what  you  think  you  have  heard. 

Mr.  PiERRBPOiVT.  You  understand  that  we  cannot  expect  you  to  repeat  the 
precise  words,  nor  do  we  desire  you  to  state  anything  that  is  not  strictly  in 
accordance  with  the  truth.  Yoa  are  permitted  to  state  the  substance  of  what 
you  have  heard  the  prisoner  say  in  reference  to  Lincoln. 

Witness.  Whenever  there  was  a  victory,  I  have  heard  Surratt  sav,  "  The 
d d  northern  army  and  the  leader  thereof  ought  to  be  sent  to  hell." 

Mr.  Bradley.  We  object  to  that. 

Q.  In  any  of  these  conversations  to  which  you  have  referred,  did  you  hear 
the  name  of  Abraham  Lincoln  mentioned  ? 

(Question  objected  to  as  leading.  The  witness  is  to  be  asked  simply  to  state 
what  he  heard.) 

The  District  Attorney.  In  any  of  these  conversations  did  Surratt  men- 
tion the  name  of  Abraham  Lincoln,  President  of  the  United  States  ? 

(Question  objected  to  as  leading.) 

The  Court.  That  is  a  leading  question. 

Witness.  I  do  not  recollect  whether  he  did  or  not,  but  at  that  time  I 
thought 

Mr.  Merrick.  No  matter  what  you  thought. 

Mr.  Pier  RE  PONT.  Did  you  in  conversation  with  Mrs.  Surratt  hear  Mr.  Stt^ 
ratt  say  anything  in  reference  to  who  was  the  leader  of  the  northern  army? 

A.  I  did  not 

Q.  Did  you  hear  either  of  them  say  who  was  the  leader  of  the  northern  army  I 

A.  I  have  heard  Mrs.  Surratt  call  the  President's  name  often ;  but  as  to  Hr. 
Surratt,  I  never  heard  him  speak  but  very  little  of  the  President. 

Q.  Was  Mr.  Surratt  present  when  she  spoke  of  the  President  ? 

A.  He  then  had  the  mail,  carrying  it  into  the  room,  if  I  mistake  not,  to  open  it. 

Q.  Was  he  within  close  hearing  1 

A.  He  was  in  the  room ;  I  think  he  was  within  hearing. 

Q.  In  speakino^  of  the  leader  of  the  northern  array,  was  there  anything  ha 
said  that  indicated  who  he  meant  as  the  leader  of  the  northern  army  ? 

A.  I  do  not  know  who  he  meant  by  that  word ;  he  only  said  "  the  leader  of 
the  northern  army." 

Q.  And  when  his  mother  was  speaking  of  Lincoln  in  his  presence,  he  did  not 
say  anything  about  "the  leader?" 

A.  No,  sir. 

(J.  Then,  when  speaking  after  victories,  at  the  time  he  used  these  words, "  Tbat 
they  ought  to  go  to  hell,  and  the  leader  of  the  northern  army  too,"  who  did  he 
say  ought  to  go  to  hell  ? 

A.  He  did  not  say ;  he  immediately  turned  his  back  and  walked  off. 

Q.  What  was  the  manner  in  which  that  was  said  ? 

A.  He  had  heard,  of  some  victory  won  by  the  northern  army,  or  of  emtuci- 
pation,  or  something  of  that  kind;  I  disremembcr  what  caused  him  to  use  tirt 
words. 

Q.  Did  you  hear  him  more  than  once  use  words  to  that  effect  ? 

A.  I  do  not  recollect  hearing  him  say  that  but  once. 

(j.  Was  his  mother  present  ? 


TRIAL  OF  JOHN  IL  SUBBATT.  181 

L.  I  do  not  recollect  whether  she  was  or  not. 

I.  Was  aiijhody  else  present  when  she  said  she  would  herself  give  $1,000 

lave  Lincoln  killed,  except  John  H.  Surratt,  the  prisoner  1 

L.  I  do  not  think  there  was  any  one  in  the  room  but  him  and  her. 

Cross-examined  bj  Mr.  Bradley  : 
l-  At  what  time  did  you  carry  the  mail  in  1863  ? 
L.  In  Fehruary  or  March. 
I.  Was  it  a  daily  mail  ? 
L.  A  daOy  mail ;  yes,  sir. 
I,  You  were  not  then  in  the  service  1 
L.  No,  sir. 

I.  Who  drove  the  stage  1 
L  I  drove  a  buggy,  and  carried  the  mail. 
I.  Who  was  the  contractor? 
L.  Mr.  Thompson. 

I.  How  soon  after  you  begun  to  carry  the  mail  was  it  that  you  heard  Mrs. 
ratt  use  that  language  ? 

L.  It  was,  to  the  best  of  my  knowledge,  near  about  the  first  of  March. 
I.  This  was  about  the  middle  of  your  time  of  carrying  the  mail  ? 
L  Tea,  sir. 

I.  What  were  they  talking  about  ? 

L  I  do  not  know  what  they  were  talking  about    I  cannot  recollect  so  far 
k.  ^ 

J.  You  do  not  recollect  any  of  the  conversation  ? 
L  No,  sir.     They  must  have  been 

).  Not  what  they  must  have  been ;  do  you  recollect  what  they  were  talking 
mtl 

L  I  recollect  of  her  asking  some  question  about  Washington,  as  she  always 
L  Every  day,  as  I  passed  backward  and  forward,  they  would  ask  if  1  had 
»  blockade  runners,  or  something  or  other.  When  I  would  go  down  from 
asbington  they  would  ask  how  were  times  in  Washingtou,  and  when  I  enme 
from  Charlotte  Hall  they  would  ask  if  I  had  heard  any  news  from  the  south  ? 
Q.  On  this  occasion  nobody  was  there  but  you  three  ? 
A.  No,  sir ;  not  that  I  recollect. 

Q.  And  you  do  not  recollect  what  they  were  talking  about  when  you  heard 
ST  Bay  ehe  would  give  81,000  to  any  one  who  would  kill  Lincoln  ? 
A.  No,  sir. 

Q.  That  is  all  you  heard  or  recollect  of  the  conversation] 
A.  That  is  all  I  recollect. 

Q.  You  were  then  carrying  the  mail  of  the  United  States ;  did  you  go  and 
II  anybody  of  that  ? 

A.  I  do  not  think  that  I  spoke  that  to  any  one.     I  paid  veir  little  attention 
what  I  heard  in  that  part  of  the  world  in  those  times.     I  did  not  notice  it. 
Q.  You  never  told  anybody  you  heard  Mrs.  Surratt  say  she  would  give 
WOO  to  any  one  who  would  kill  Lincoln  1 

A.  No,  sir ;  not  until  it  was  somewhere,  I  believe,  about  two  months  ago,  I 
'>ke  it  to  a  gentleman  in  Washington  here. 
Q.  Who  was  that  ? 
A.  It  was  my  uncle. 
Q.  Who  is  he  ? 

A.  Watson  is  his  name — William  J.  Watson.     I  suppose  he  kt  the  cat  out 
tbe  wallet. 

Q.  This  Mr.  Watson  is  the  only  one  you  ever  told  this  to,  and  that  only  two 
•»ilhB  ago  ? 


182  TRUL  OF  JONH  H.   SUBBITT. 

A.  If  I  mistake  not,  I  told  my  father  of  it.     I  will  not  be  positive. 

Q.  Where  does  William  J.  Watson  live  ? 

A.  In  Prince  George's  county,  Maryland, 

Q.  How  far  from  here  1 

A.  Thirty-eight  miles. 

Q.  When  were  you  discharged  ? 

A.  In  November,  I  think. 

Q.  Where  were  you  stationed  in  the  spring  of  1865  ] 

A.  I  was  with  the  army  of  the  James,  on  the  north  side  of  the  James  river. 

Q.  With  General  Grant  1 

A.  Yes,  sir. 

Q.  Where  were  you  discharged  ? 

A.  At  Fortress  Monroe. 

Q.  You  say  you  heard  John  Surratt  say — and  you  cannot  recollect  hearing 
him  say  it  but  once — ^that  he  wished  the  northern  army  and  their  leader  was  in 
hell.     Where  was  that  1 

A.  It  was  at  his  own  house,  or  at  his  mother's  house. 

Q.  Was  it  while  you  were  carrying  the  mail,  in  February  or  March,  18C3  ? 

A.  Yes,  sir. 

Q.  You  do  not  know  whether  that  was  after  some  victory,  or  something  abont 
emancipation  ? 

A.  I  do  not  know  whether  he  was  alluding  to  emancipation,  or  whether  it 
was  some  victory ;  it  was  something  they  were  talking  about. 

Q.  Was  anybody  present  then  ? 

A.  I  think  there  were  some  two  or  three  in  the  room. 

Q.  Do  you  remember  any  of  them  1 

A.  No,  sir,  I  do  not. 

Q.  Mrs.  Surratt  and  her  son  both  knew  you  were  employed  by  the  govern- 
ment as  a  mail  carrier  ? 

A.  Yes,  sir. 

Q.  Yet  you  heard  these  two  expressions.  Can  you  describe  where  Mrs.  Snr 
ratt  was  when  you  heard  her  make  use  of  that  expression  ? 

A.  She  was  in  the  bar-room,  standing,  I  think,  near  about  the  centre  of  the 
floor. 

Q.  Where  was  he  ? 

A.  He  was  then  passing,  as  near  as  I  can  recollect.  Whether  he  had  opened 
the  door  to  go  into  the  room,  or  not,  I  cannot  state. 

Q.  Was  that  to  assort  the  mail  ] 

A.  Yes,  sir. 

Q.  Can  you  state  whether  he  had  not  gone  through  1 

A.  I  do  not  recollect  whether  he  had  gone  through  or  not.  I  am  confident 
he  was  there  just  before  the  time  she  spoke. 

Q.  Then  she  said  that  to  you  ? 

A.  Yes,  sir,  she  said  that  to  me. 

Q.  And  so  far  as  you  are  positive,  you  do  not  know  whether  any  one  else 
was  present  1 
A.  No,  sir,  I  do  not  know  of  any  one  else  being  present. 
Q.  You  say  you  mentioned  it  to  your  uncle  Watson,  and  you  may  have  men- 
tioned it  to  your  father.     Who  did  you  mention  it  to  afterwards  t 
A.  I  cannot  recollect  who  I  mentioned  it  to  after  that. 
Q.  Who  came  after  you  ? 

A.  A  detective,  or  some  one;  I  do  not  know  who  he  was. 
Q.  What  sort  of  a  man  ] 

A.  He  was  an  aged-looking  man,  somewhere  about  thirty-five  or  fortjTt  I 
think.    I  could  not  call  his  name. 


TRIAL  OF  JOHN  H.   8URBATT.  183 

I  Did  you  tell  him? 
L  No,  sir. 

I,  Did  he  not  come  to  ask  joa  what  jon  knew  about  it  ? 
L.  No,  sir. 

I.  What  did  he  do  when  he  came  ? 

L.  He  said  he  had  a  summons  for  me,  and  gave  me  a  summons  to  appear  at 
court-house. 

I.  Have  you  that  summons  with  you  ? 
L  I  have.    [Summons  produced.] 

I.  Did  you  go  to  any  other  place  before  you  came  to  the  court-house  t 
L  Yes,  sir;  I  went  to  a  eooa  many  other  places  before  1  came  here. 
I.  Did  you  go  to  any  other  place  and  have  a  conversation  about  this  busi- 
8  before  you  came  here  ? 

L  He  ordered  me  to  report  to  Mr.  Carrington.    I  went  there,  and  Mr.  Gar- 
gton  told  me  to  be  here  in  the  witness-room. 
^.  Did  you  go  to  anybody  else  besides  Mr.  Carrington  after  that  ? 
L  No,  sir. 
Q.  When  was  that} 
A.  Yesterday  morning. 

Q.  Do  you  mean  that  you  did  not  tell  the  detective  or  Mr.  Carrington,  or 
iybody  else,  about  this  ? 
A.  ^o,  sir,  not  that  I  recollect 
(Examination  objected  to  by  the  district  attorney. 

The  Court.  The  witness  may  be  asked  whether  the  detective  gave  any 
rwniBe  or  offered  any  reward.) 

Q-  Did  you  say  anything  to  anybody  yesterday  about  this  matter  ? 
A.  No,  sir. 

Q.  You  did  not  tell  anybody  what  you  knew  about  this  business,  or  what  yon 
>nld  prove  ? 

A.  No,  sir,  I  did  not,  that  I  can  recollect. 

Q-  Did  I  understand  you  correctly,  that  you  did  not  mind  these  expressions 
'^1  considering  the  kind  of  people  that  were  down  there  ?  Were  tnese  ex- 
f^ons  common  in  that  part  of  the  world  ? 

(Question  objected  to  by  Mr.  Pierrepont,  as  too  large  a  scope  to  inquire  about 
tprewions  "  in  that  part  of  the  world."     Objection  overruled,  on  the  ground 
^  it  was  in  explanation  of  what  the  witness  had  already  said.) 
A.  That  expression  was  very  common  among  the  people  of  Prince  George's 
>Wity,  Maryland. 

^fiBBT  H.  Cooper  sworn  and  examined. 

By  Mr.  Pierrbpont  : 
Q.  Are  you  now  in  the  army  ? 
A.  No,  sir. 

Q.  When  did  you  leave  the  army  ? 
A.  In  June,  1865 ;  I  was  discharged. 
Q.  Were  you  in  the  volunteer  service  ? 
^  Yes,  sir. 

Q.  Prom  what  State  ? 

^-  Pennsylvania,  Beaver  county,  town  of  Beaver. 
•J.  Do  yon  live  there  ? 
^.  Yes,  sir. 

c.  What  is  your  occupation  there  ? 
^  I  am  a  clerk  in  a  store. 
c.  When  did  you  enter  the  army  ? 
^.  I  entered  it  in  August,  1862. 
i.  What  was  your  service? 


184  TBUL  OF  JOHN   H.   8UB&ATT. 

A.  I  was  in  the  artillery.  I  belonged  to  Thompson's  Independent  Btt 
company  G,  Pennsylvania  artillery. 

Q.  Where  was  yonr  company  stationed  ? 

A.  At  Gamp  Barry,  intersection  of  Gamp  Barry  with  the  Baltimore  pik 

Q.  At  that  time  what  was  your  office  ? 

A.  I  was  a  line  sergeant. 

Q.  In  April,  1865,  you  were  a  line  sergeant  ? 

A.  Yes,  sir. 

Q.  You  remember  the  event  of  President  Lincoln's  assassination,  of  coi 

A.  Yes,  sir. 

Q.  In  the  afternoon  of  that  day  were  you  at  your  camp  ? 

A.  Yes,  sir. 

Q.  At  what  time  did  you  leave  your  camp  ? 

A.  It  was  after  dress  parade.     Dress  parade  is  about  sundown. 

Q.  This  was  April  14,  1865  ? 

A.  Yes,  sir. 

Q.  After  that,  what  did  you  do  ? 

A.  I  came  to  town. 

Q.  How  far  was  your  camp  from  Ford's  theatre  ? 

A.  I  presume  it  is  two  miles.    I  do  not  know  the  exact  dbtance. 

Q.  Who  did  you  come  in  with  ? 

A.  I  came  in  with  Sergeant  Dye. 

Q.  Where  did  you  and  Sergeant  Dye  go  to  1 

A.  We  went  down  to  Pennsylvania  avenue,  and  from  there  we  went  up  1 
street  to  Ford's  theatre. 

Q.  What  did  you  go  to  Ford's  theatre  for — in  consequence  of  whatt 

A.  There  was  no  particular  consequence — we  were  merely  going  to  c 
We  came  down  Pennsylvania  avenue  that  far,  and  went  up  10th  street. 

Q.  Did  you  hear  anything  that  made  you  stop  there  1 

A.  No,  sir. 

Q.  When  you  got  to  the  theatre  what  did  Sergeant  Dye  do  ? 

A.  He  sat  down  on  the  platform  in  front  of  the  theatre. 

Q.  Was  there  any  carriage  near  the  platform  ? 

A.  Ye?,  sir  ;  the  Presi'.lent'a  carriage  was  standing  at  the  platform. 

Q.  What  did  you  do  ? 

A.  I  do  not  remember  whether  I  sat  down  when  he  did  or  remained  s 
ing.  I  presume  I  sat  down  alongside  of  him,  but  did  not  sit  but  a  momc 
two. 

Q.  Tlien  what  did  you  do  ? 

A.  I  think  I  moved  up  the  street  a  few  yards  towards  F  street. 

Q.  Then  what  i 

A.  I  was  walking  up  and  down  the  street.  I  walked  up  to  the  comer 
.street  once,  crossed  over  to  the  other  side  of  10th  street  and  walked  dow 
other  side. 

Q.  Did  you  cross  back  again  on  the  same  side  the  tlicatre  was  ? 

A.  Yes,  sir ;  I  went  across  right  in  front  of  the  theatre. 

Q.  State  whether  you  spoke  to  anybody  ;  and  if  so,  to  whom  ? 

A.  I  do  not  remember  correctly.  Sergeant  Dye  was  sitting  there,  ai 
and  I  may  have  had  some  conversation.  We  had  conversations  at  dif 
times. 

Q.  While  yon  were  walking  about  ? 

A.  Yes,  {?ir,  we  did.  When  I  came  to  where  he  was  sitting  I  some 
spoke  to  him. 

(Counsel  for  tlie  defence  objected  to  this  kind  of  examination  as  leading 

C)bJL'ction  sustained  by  the  court.) 

Q.  Did  you  speak  to  any  other  person  that  you  remember  ? 


TRIAL  OP  JOHN  H.  SUBBATT.  185 

A.  I  do  not  remember  that  I  did. 

Q.  You  8poke  of  the  President's  carriage  standing  hy  the  platform  ? 

A.  Yes,  sir ;  we  observed  that  when  we  went  there. 

Q  Did  you  see  anybody  about  the  carriage  1  and  if  so,  who  did  you  see  ? 

A.  The  driver  sat  on  the  cai-riage,  and  while  we  remained  there  a  gentlenmn 
approached  the  carriage  to  the  rear  and  looked  in  at  the  rear  of  the  carriage. 

Q.  Tell  what  kind  of  a  man  he  was ;  I  speak  of  age,  height,  dress,  and  ap- 
pearance? 

A.  He  was  a  young  man,  very  genteelly  dressed ;  that  was  all  I  noticed  about 
bim.    I  did  not  observe  hira  particularly. 

Q.  As  to  height,  what  would  you  say  ? 

A.  I  presume  he  was  about  five  feet  eight  or  ten  inches. 

Q-  Compared  with  yourself,  what  was  his  height,  without  going  into  feet  and 
inehei». 

A.  I  think  probably  he  was  about  the  same  height  I  am,  as  nearly  as  I  can 
recollect. 

Q.  Did  you  see  any  other  man  standing  there  near  the  wall  ? 

A.  I  observed  a  rough-looking  man  standing  near  the  wall  of  the  theatre. 

Q.  Tell  about  his  height. 

A.  I  would  say,  to  the  best  of  my  recollection,  that  he  was  not  as  tall  as  the 
other  gentleman,  who  looked  into  the  rear  of  the  carriage. 

Q.  Did  you  see  anybody  go  into  the  drinking  room  by  the  side  of  the 
theatre? 

A.  Yes ;  I  saw  a  gentleman  go  into  the  drinking  saloon  below  the  theatre. 

Q.  Who  was  he— did  you  know  him  ? 

A.  1  did  not  know  the  gentleman ;  he  was  pointed  out. 

Mr.  Bradlby.  That  is  not  evidence. 

Mr.  Pierrepont  proposed  to  show  that  this  man  was  pointed  oat  to  witness 
M  John  Wilkes  Booth. 

Objection  sustained. 

(Witness  at  this  point  partially  fainted,  and  proceedings  we^  suspended  for 
Wffle  moments  until  he  had  recovered.) 

Q- 1  will  ask  you  if  the  same  person  who  was  pointed  out  to  you  went  into 
we  drinking  saloon  ? 

■*•  Yes,  sir ;  1  observed  him  go  into  the  drinking  saloon. 

Q-  Was  he  pointed  out  to  you,  and  his  name  given  ? 

^  Yes,  sir. 

Q-  Did  you  see  him  come  oiit  ? 

^'  Yes,  sir. 

Q-  After  this  man  came  out  from  the  saloon,  what  did  he  do  ? 

A.  1  did  not  observe  him  after  he  came  out  from  the  saloon. 
^'  Before  that,  did  you  hear  any  one  call  the  time  1  and  if  so,  what  did  you 
"^  the  last  time  you  heard  it  ? 

.^  The  last  time  1  heard  it  called  was  ten  minutes  past  ten.     It  was  after 
^"^gentleman  came  out  of  the  saloon. 

Q-  Did  you  hear  the  time  called  before  that  ? 
.  A.  1  cannot  recollect  distinctly  whether  I  did  or  not.     I  have  a  faint  recol- 
^^  that  I  did,  but  I  am  not  certain. 

Q-  Were  you  so  situated  at  the  time  you  heard  the  time  called,  ten  minutes 
^'  ten,  that  you  could  see  the  face  of  the  man  who  called  it  ? 

^'  No,  sir ;  I  was  not. 

Q-  What  did  you  and  Sergeant  Dye  then  do  ?     State  what  occurred. 

A-  We  started  round  a  corner  and  went  to  a  saloon  to  got  some  oysters. 

Q-  Did  anything  occur  exciting  your  suspicion  at  this  time  ? 

4*  1  do  not  know  that  I  could  say  that  there  was  anything  particular  that 
^cited  my  suspicion. 
13 


186  TBIAL   OF  JOHN   H.   SURBATT. 

Q.  Did  anything  occur  from  anybody  else  exciting  your  BOBpicion  at  tie 
timel 

Mr.  MbRRiCK.  Anything  that  was  done? 

Mr.  PiERRRPONT.  Anything  that  was  said  ? 

The  Court.  He  may  state  anything  that  was  said  or  done  by  other  partiei 
who  were  there  present  acting  together,  if  he  saw  or  heard  them. 

Q.  I  want  to  know  whether  you  had  completed  your  answer  in  regard  to 
your  suspicion  ] 

A.  I  had. 

Q.  What  did  you  and  Sergeant  Dye  do? 

A.  We  went  around  a  corner  to  an  oyster  saloon  and  ordered  some  oysters- 
Before  we  had  received  the  oysters  a  man  came  running  in  and  said  the  Fresi'^ 
dent  was  shot. 

Q.  What  then  did  you  do  ? 

A.  We  ate  some  of  our  oysters.    I  cannot  say  that  we  ate  them  all.    Wego^ 
up  and  went  out  to  H  street,  and  went  down  H  street  to  camp.  ^ 

Q.  As  you  were  going  down  H  street  to  camp,  on  which  side  of  the  street d^^ 
you  go  ? 

A.  We  went  down  the  right-hand  side  to  somewhere  about  the  Printing  Offi^?^ 

Q.  What  occurred,  if  anything,  on  your  way  down  ? 

A.  As  we  were  going  down  H  street  there  was  a  lady  raised  a  window,  p^^ 
her  head  out,  and  asked  us  what  was  going  on  down  town,  or  something  to  tW — 
effect. 

Q.  What  was  the  reply  ? 

A.  We  told  her  the  President  was  shot.  She  asked  us  who  shot  him.  l^S 
replied,  Booth. 

Q.  Was  there  anything  about  the  house  to  mark  it  ? 

A.  I  observed  there  were  high  steps  there. 

Q.  Have  you  seen  the  house  since,  or  passed  it  ? 

A.  I  have  seen  a  house  that  resembles  it. 

Q.  What  is  the  number  of  the  house  ? 

A.  541  H  street. 

Q.  Have  you  seen  it  lately  ? 

A.  Yes,  sir;  a  few  days  ago. 

Q.  What  did  you  do  then  ? 

A.  We  went  on  to  camp.  A  little  further  down  the  street  we  met  two  po- 
licemen. 

Q.  What  occurred  between  you  and  the  policemen?  j 

Mr.  M  BR  RICK.  That  will  not  do,  unless  they  were  part  of  the  conspiratoa 

Mr.  PiERREPONT.  They  were  not  a  part  of  the  conspirators,  but  we  deaire 
the  witness  to  answer  what  occurred. 

A.  Nothing  occurred.  We  met  them  and  passed  on.  As  we  met  them  w« 
told  them  the  President  was  shot. 

Mr.  Merrick.  No  matter  what  occurred  between  you  and  the  policemen;  it 
is  not  proper  to  be  shown. 

Objection  sustained. 

Cross-examined  by  Mr.  Bradley  : 
Q.  In  what  street  was  that  oyster  saloon  where  you  got  your  oysters  ? 
A.  I  do  not  know  now.     It  was  after  night,  and  I  did  not  take  notice  of  the 
street. 

Q.  Did  you  cross  any  street  before  you  turned  ? 

A.  No,  Fir,  I  ibhik  not.     We  went  round  the  corner  of  a  street. 

Q.  1  be  Hm  street  above  the  theatre  ? 

A.  I  cannot  recollect  whether  it  was  the  first  one  above  or  first  below. 

Q.  When  you  came  out  from  tbere,  did  you  not  start  directly  for  the  campt 


TRIAL  OF  JOHN   H.   8URRATT.  187 

A.  Yes,  sir,  and  we  would  natarallj  Ptart  out  F  street  to  go  directly  to  the 
camp,  bat  we  may  have  gone  along  the  next  street  below,  and  then  gone  up  to 
F  Ptreer. 

Q.  You  cannot  recollect  whether  you  went  towards  the  avenue  or  towards  H 
street! 

A.  If  we  went  towards  the  avenue  we  did  not  go  more  than  to  the  next 
street  below.     I  do  not  recollect  which  way  we  went,  whether  north-  or  south. 
I  know  we  went  not  more  than  two  squares  to  get  the  oysters,  and  then  went 
'  up  to  H  street  and  went  home. 

Q.  Just  after  you  had  ordered  your  oysters  some  one  came  m  and  said  the 
President  was  shot.    Tell  us  what  was  said  at  that  time. 
A.  We  were  very  much  confounded, 
Q.  What  did  the  man  say  as  he  came  in  ? 

A.  I  did  not  hear  him  say  anything  that  I  know  of  but  that  the*  President 
^fn  gbot.    He  was  a  stranger.     I  did  not  know  him. 
Q.  Ht'  did  not  say  who  shot  him,  or  anything  more  about  it  ? 
A.  He  said  J.  Wilkes  Booth  had  shot  him. 
Q«  That  was  immediately  after  the  shooting  ? 

A.  Yes,  sir;  it  was  just  a  few  minutes  after  we  had  left  the  front  of  the 
weatre. 

Q'  When  I  inquired  particularly  as  to  where  the  oyster  saloon  was,  it  was  in 
^er  to  get  at  the  lapse  of  time  aflter  you  left  the  theatre.     What  time  did  it 
^6  you  to  get  to  the  oyster  saloon  ? 
^'  It  could  not  have  been  more  than  a  minute  or  two^a  very  short  time. 
Q-  Do  yon  recollect  whether  you  did  not  cross  Tenth  street  on  to  the  other 
«ae  of  Tenth  street? 
^-  Ko,  sir,  we  did  not  go  there. 
"•  You  know  there  is  a  saloon  there  ? 
j^-  There  may, be  one;  1  do  not  recollect, 
ji    You  are  sure  you  turned  a  corner  ? 
^     Yes,  sir,  I  am  sure  of  that. 

%•    Do  you  recollect  whether,  in  going  into  the  restaurant,  you  had  to  go  up 
^^^  eteps  ? 
^-   No,  sir,  we  went  straight  in  from  the  pavement. 

X-   Do  you  recollect  whether  you  turned  to  the  right  or  left,  at  the  comer  ? 
^   No,  sir,  I  cannot  recollect  that. 

Vl-   You  say  that  on  your  way  out  to  camp,  some  lady  raised  a  window  and 
J*'^  to  you  to  know  what  was  going  on  down  Qtroot,  ani  that  you  had  seen 
™J  house  since ;  who  pointed  it  out  to  you  ? 
^-  It  was  not  pointed  out  to  me  at  all. 
X*  Did  you  go  up  to  look  at  it  for  yburself  ? 

Aj-   I  was  told  to  go  along  the  street  to  see  if  I  could  observe  a  house  that  re* 
"^^les  the  one  described  as  541. 
X*  Did  you  find  more  than  one  that  resembled  it  ? 

^-  I  do  not  know  that  I  did  find  more  than  one  that  resembled' that  house. 
X.  Was  there  any  house  adjoining  it  ? 
^  Yes,  sir. 

X-  Has  it  an  entrance  of  the  same  kind  ? 
^  No,  sir 

Y.  What  is  the  diflTerence  ? 

A'  There  is  an  a\l'y  right  at  the  side  of  the  house  where  the  lady  raised  the 
^^ow;  there  is  none  by  the  one  adjoining. 
X-  Did  you  observe  the  alley  that  night  or  when  you  looked  at  it  recently  ? 
^  No,  sir ;  I  observed  it  that  night,     I  observed  that  the  window  which  was 
^'•ed  was  next  to  the  alley, 
Q.  Was  it  over  the  front  door  I 


188  TBLiL  OF  JOHN  II.  SURBATT. 

A.  No,  sir ;  it  was  not  over  the  front  door,  it  was  to  the  left  of  the  front  i 

Q.  East  or  west  ? 

A.  East. 

Q.  Was  there  any  light  in  the  room  ? 

A.  1  cannot  distinctly  recollect.  I  do  not  know  as  I  observed  that  ' 
moon  was  shining.  I  could  not  say  it  was  shining  bright,  but  it  was  shii 
so  that  I  could  see  a  considerable  distance  ahead  on  the  street 

Q.  Was  it  a  clear  or  a  cloudy  night  ? 

A.  I  think  it  was  a  clear  night. 

Q.  What  time  in  the  night  was  it  ? 

A.  It  was  probably  about  twenty  minutes  to  eleven  o'clock,  as  near  as  1 1 
recollect. 

Q.  Do  you  remember  quite  distinctly  about  the  moon  shining  and  the  xu 
being  clear  ? 

A.  I  remember  the  moon  was  shining,  but  to  say  whether  it  was  shii 
bright  or  not  I  could  not  tell.     I  think  it  was  a  clear  night. 

Q.  Are  you  as  confident  about  that  as  you  are  about  anything  else  that  nb 

A.  I  am  confident  the  moon  was  shining.  As  to  the  night  being  dear  I 
not  charge  my  memory  with  it.  I  >think,  to  the  best  of  my  recollection,  thoi 
that  the  night  was  clear. 

Q.  When  that  man  called  the  time,  do  you  recollect  anybody  else  out  in  f 
of  the  theatre  besides  yourself  and  Sergeant  Dye, 

A.  1  presume  there  was. 

Q.  Do  you  recollect  ? 

A.  Yes,  sir ;  I  noticed  two  or  three  other  gentlemen  standing  around  thoi 
of  the  theatre,  but  1  did  not  observe  them  particularly. 

Q.  Therefore  you  cannot  tell  whether  they  had  been  there  some  time  or  i 

A.  No,  sir,  I  cannot  tell. 

Q.  Were  you  armed  that  night  ? 

A.  No,  sir ;  I  bad  nothing  but  a  penknife. 

Q.  You  did  not  carry  your  revolver  wrapped  up  in  a  handkerchief? 

A.  No,  sir. 

Q.  Do  you  recollect  your  purpose  or  object  in  coming  into  town  that  par 
lar  night  of  Good  Friday,  one  of  our  solemn  fasts  ? 

A.  We  had  no  particular  object  in  coming  into  town.  The  principal  t 
we  came  in  for  waa  to  witness  a  torch  light  procession  that  was  passing  uj 
avenue 

Q.  Did  you  see  that  ? 

A.  Yea,  sir. 

Q.  What  time  did  you  go  up  to  the  theatre  ? 

A.  It  was  about  half  past  nine  o'clock.  It  may  have  varied  a  few  mil 
from  that,  but  not  more  than  two  or  three. 

Q.  You  staid  there  until  you  heard  this  man  call  out  "ten  minutes 
tenr* 

A.  Yes,  sir ;  and  immediately  after  that  left. 

Q.  Did  you  see  anything  like  a  military  movement — of  men  cdigniug  t 
selves  about  that  place  ? 

A.  I  did  not  observe  that.  I  was  not  standing  in  front  of  the  theatre ;  1 
walking  up  and  down,  and  was  not  paying  particular  attention. 

Q.  You  say  you  saw  one  gentleman  go  into  the  saloon ;  did  not  you  see 
one  else  go  in  ? 

A.  Yes,  sir,  I  saw  several  gentlemen  go  in ;  that  one  gentleman  was  po 
out  to  me. 

Q.  Do  you  recollect  whether  a  good  many  went  in  before  that  gentlem 
after  he  had  gone  in  ? 


TRIAL  OF  JOHN   H.   8URBATT.  189 

A.  I  think  they  all  went  in  before  that  gentleman.     I  do  not  recollect  that  I 
observed  any  go  in  after  that  gentleman  came  out. 

Q.  Tonr  attention  had  not  been  drawn  to  that  gentleman  until  he  went  into 
the  saloon  ? 

A.  No,  Bir. 

By  a  JuBOR : 

Q.  When  you  went  to  get  those  oysters  to  which  yon  refer,  did  you  turn  a 
.  comer  ? 

A.  Yes,  sir. 

Q.  And  you  do  not  know  whether  it  was  to  the  right  or  left  ? 

A.  I  do  not  know  whether  it  was  to  the  right  or  leflt. 

Q*  Afi  you  proceeded  down  H  street  and  a  party  put  her  head  out  of  a  window, 
coold  you  distinguish  the  features  of  the  person  ? 

A.  Yes,  sir,  I  could  see  her  plain. 

Q.  Could  you  see  her  features  ? 

A.  1  do  not  know  as  I  observed  the  features  closely,  I  just  remember  lookiiiff 
?ttheUdy. 

Q*  Gould  you  tell  whether  she  was  white  or  black  ] 

A.  Yes,  shr. 
.  Q-  Young  or  old  ? 

^  She  was  not  a  young  lady,  and  I  did  not  think  she  was  an  old  lady ; 
"^nt  middle-aged. 

Q*  In  what  part  of  the  house  was  she  standing,  the  second  or  third  story  ? 

A.  The  second  story.     The  window  was  on  a  line  with  the  steps. 

Q-  Bow  many  stories  are  there  to  the  house  ? 

A*  I  Uiink  three. 

Q-  -A.nd  she  was  on  a  Ime  with  the  steps ;  did  you  go  up  the  steps  ? 

^'  No,  sir. 

V  iDid  your  companion  go  on  the  steps  ? 

^  No,  sir,  not  to  the  best  of  my  recollection. 

Q*  Gould  you  see  much  of  her  body  ? 

A*  No,  sir,  not  very  much. 

V  Gould  you  tell  whether  she  was  a  stout  lady  or  otherwise  ? 
A*  She  was  a  very  stout-looking  lady. 

By  the  Court  : 
Q'  ^hen  you  speak  of  the  second  story,  do  you  mean  that  the  steps  landed 
•*»e  second  story? 
^  The  second  story ;  yes,  sir. 

H    Then  the  house  was  what  you  would  call  two  stories  and  a  basement  ? 
A*   Yes,  sir;  that  is  it,  I  think. 

By  Mr.  Bradley  : 
Q*  Can  you  recollect  whether  she  had  a  cap  on  or  not  ? 
A    1  do  not  know  whether  I  observed  that  or  not.     1  think  she  had  not. 
I       Q«  Can  you  recollect  whether  she  had  curls  by  the  side  of  her  head,  or 
I    whether  she  had  her  hair  brushed  back  ? 
1       A.  I  think  her  hair  was  plain  combed  back. 
B       The  court  took  a  recess  till  to-morrow  at  10  o'clock. 

ft  Thursday,  June  20,  1867. 

B     The  Court  met  at  10  a.  m. 

^B     ^.  Bradley  moved  that  an  order  be  made   that  Carroll  Hobart,  Charles 

^B  Knui,  and  Sergeant  Dye  be  recalled,  stating  that  information  had  come  to  the 

-^  Wledge  of  the  defence  since  those  witnesses  had  been  examined,  in  reference 

0  which  they  wished  to  further  cross-examine  them  for  the  purpose  of  laying 

he&QBJation  for  contradicting  the  testimony  they  had  given. 


190  TRIAL   OP   JOHN   H.   8URBATT. 

The  court  stated  that  he  could  not  entertain  the  motion  until  proper  aff 
vita  were  presented. 

E.  L  Smoot,  residence  Charles  county,  Maryland,  sworn  and  examined. 
By  the  District  Attorney  : 

Q    Where  do  you  reside  ? 

A.  In  Charles  county,  Maryland. 

Q.  How  long  have  you  resided  in  Charles  county,  Maryland  1 

A.  i^ince  the  Ist  of  January,  1864. 

Q.  I  believe  you  are  a  native  of  Maryland  ? 

A.  Yes,  sir,  of  Charles  county. 

Q.  Do  you  remember  removing  your  residence  from  Charles  county  t9  E^ 
George's  ? 

A.  Yes,  sir;  in  the  fall  of  1864. 

Q.  After  your  marriage  ? 

A.  I  was  maiTied  in  1860. 

Q.  To  what  part  of  Prince  George's  county  did  you  remove  your  reside 

A.  About  a  mile  from  Surrattsville. 

Q.  During  what  years  were  you  residing  near  Surrattsville  ? 

A.  1865  and  1866. 

Q.  Did  you  know  Mrs.  Mary  E.  Surratt  ? 

A.  Yes,  sir ;  I  have  seen  her. 

Q.  State  if  you  know  the  prisoner,  John  H.  Surratt  ? 

A.  I  do. 

Q.  Do  you  know  him  well  ? 

A.  Yes,  sir ;  pretty  well. 

Q.  How  long  have  you  known  him  ? 

A.  Some  three  or  four  years      I  do  not  recollect  exp.ctly  where  I  first  met  7 

Q.  Do  you  recollect  of  his  paying  you  a  visit  when  you  were  living  in  Pr* 
George's  county  near  Surrattsville,  some  time,  I  think,  in  the  month  of  JancJ 
or  Februf*ry,  previous  to  the  assassination  ? 

A.  Yes,  sir ;  I  recollect  he  was  at  my  house  on  one  occasion. 

Q    "Which  month  was  that] 

A.  I  disremember  now.  I  know  it  was  in  cold  weather — soon  after  I  m«i^ 
there. 

Q.  How  long  did  he  remain  with  you  on  that  occasion  ? 

A.  He  went  to  my  house  at  night,  and  went  away  the  next  morning — ^he  b^ 
the  night  there,  that  is  all. 

Q.  Will  you  state  if  you  had  any  conversation  with  him  at  that  time. 

A.  Yes,  sir ;   I  was  talking  with  him. 

Q.  State  what  the  convert*ation  was. 

A.  I  do  not  now  recollect  the  exact  conversation.  We  were  talking  af 
different  things  all  the  while. 

Q.  Go  on  and  state,  if  you  please,  how  he  employed  himself  at  that  tim^ 

A.  I  saw  him  very  often.     1  was  joking  him  about  his  going  to  Richm 
He  never  acknowledged  to  me  that  he  had  been  to  Richmond,  but  laughed 
said :  •*  If  the  Yankees  knew  what  he  had  done,  or  what;  ho  was  doing,    i 
would  stretch  his  neck." 

Q.  Describe  his  manner  when  he  made  use  of  that  remark. 

A.  lie  smiled,  and  raised  his  head  up  in  this  way,  (witness  throwing  his  fi 
back  in  illus^tration  of  the  manner,)  and  said:  "They  would  stretch  this 
neck  of  mine." 

Q.  What  further  did  he  say  at  that  time  ? 

A.  I  really  don't  recollect  now  what  took  place  afterwards. 

Q.  I  will  ask  you  if  you  did  not  in  those  conversations  speak  to  him  of  g* 
to  the  city  of  Richmond  1 


TRIAL  OP  JOHN  H.  8URRATT.  191 

(Objected  to  on  the  ground  of  being  leading.     Modified  w  follows  :J 
Q.  State  what  he  did  say  in  response  to  anything  yoa  said  about  hU  going 
^  Aichmond. 
A.-  He  laughed,  but  never  acknowledged  ir. 
I  Q-  I  wish  you  to  state  to  the  jury,  if  you  can,  the  substance  of  what  he 

^df  and  it  wUl  be  for  us  to  determine  whether  he  acknowledged  it  or  not. 
A.  I  do  not  recollect  now  exactly ''what  he  said,  it  has  been  so  long. 
Q-  State  the  substance  if  you  can  ;  if  you  cannot,  say  so. 
-^^  I  do  not  recollect. 

Q-  Did  he  deny  that  he  had  been  to  Richmond  ? 
(Objected  to  as  leading.    Question  withdrawn.) 
Q<  Can  you  recollect  of  anything  that  he  said  at  that  time  ? 
^    No,  sir. 

Q-   Have  you  had  any  unkind  feelings  for  Surratt  ? 
(Objected  to-     Question  withdrawn.) 

Cross-examination : 

By  Mr.  Mbrrick  : 

Q-   When  did  you  move  from  Charles  county  to  Prince  George's  ? 
A..    In  December,  1864. 

^-    T>\d  Surratt  come  to  your  house  on  the  occasion  referred  to  alone  ? 
A.-   Yes,  sir ;  he  was  alone. 

Q*   When  did  you  first  communicate  this  fact  that  you  have  just  stated  to  the 
jury? 

A..   It  was  after  the  assassination. 

Q-  When  did  you  come  to  Washington  city  the  last  time  ? 

A.  The  other  day.  ■ 

Q.  On  last  Sunday? 

A.  Yes,  sir. 

H'  Were  you  summoned  ? 

A.  Yes,  sir ;  I  was  summoned  to  appear  before  the  district  attorney. 

Q.  Did- you  go? 

A.  Yes,  sir. 

H'  I>id  you  tell  him  what  you  have  just  stated  ? 

A.  Yes,  sir,  I  think  T  did. 

Q-  To  what  official  did  you  go  after  talking  with  the  district  attorney  about 
«»« matter?  . 

,^'^  was  afterwards  examined  by  Judge  Holt ;  I  did  not  know  his  name ; 
I     ne  told  me  he  was  Judge  Holt  after  I  had  been  examined. 

J-  Where  was  it  that  you  were  examined  before  him  ? 

^'  Up  at  Winder's  building. 

Y  Opposite  the  War  Department  ? 

A  Yes,  sir. 

J-  Who  were  in  the  room? 

A  Judge  Holt  and  another  gentleman ;  I  do  not  know  his  name. 

|»  Was  what  you  said  taken  down  in  writing? 

A  I  think  so. 

VI-  Were  there  any  other  witnesses  in  this  case  that  you  know  of  up  there  at 

A  Yes,  sir ;  nine  others  went  up  with  me. 

Q-  How  often  have  you  been  up  before  Judge  Holt  ? 

A  Only  once. 

Q-  Were  you  present  at  the  examination  of  any  of  the  other  witnesses  ? 

A  No,  sir. 

Q.  Do  you  know  Mr.  John  T.  Davis,  from  Charles  county  ? 

A  Yes.  sir. 


192  TRIAL   OF   JOHN   H.   SUBRATT. 

Q.  HaviB  you  ever  eaid  to  Mr.  Davis  or  any  one  else  that  they  had  o 
pay  your  expenses  at  the  hotel  here  and  give  you  some  ten  or  fifteen  c 
day  if  you  would  testify  1 

A.  No,  sir;    I  said  that  a  certain  gentleman  had  told  me  that  h 

guarantee  me,  if  I  would  do  what  was  right.     I  asked  him  when  I  go 

he  had  me  summoned  ?     He  said  he  did  not  know  anything  aboat  it. 

him  I  was  losing  a  good  deal  by  being  up  here.    "  Oh,"  says  he, "  I  will  ae 

•  right;  you  will  get  ten  dollars  a  day  if  you  will  do  what  is  right." 

Q.  Who  was  that? 

A.  It  was  Townly  B.  Rodey, 

Q.  Was  he  getting  up  testimony  in  this  case  ? 

A.  Not  that  I  know;  I  do  not  know  anything  about  it. 

Q.  Didn't  you  state  that  Townly  Rodey  had  brought  you  a  messi 
some  official  personage  that  you  would  get  ten  dollars? 

A.  Yes,  sir ;  he  told  me  that  he  had  seen  Mr.  Wilson,  and  had  mi 
right. 

By  the  Assistant  District  Attorn  by  s 

Q.  Have  not  yon  been  to  Mr.  Merrick's  office  since  you  have  been  in  t 

A.  I  passed  Mr.  Merrick's  office  yesterday  morning. 

Q.  How  often  have  you  been  to  Mr.  Merrick's  office  ? 

A.  Only  once. 

Q.  Have  not  you  been  talking  with  Mr.  Merrick  on  the  street  about  tl 

A.  Yes,  sir;  he  asked  me  some  questions  about  it.  He  said  he  was 
with  a  sharp  stick,  or  something  of  that  kind. 

Jambs  M.  Wright,  recalled: 

By  the  District  Attorney  : 

Q.  You  have  already  stated  that  you  are  a  chief  clerk  in  the  office  of  tl 
Advocate  General  ? 

A.  Yes,  sir. 

Q.  State  what  those  papers  are  that  you  hold  in  your  hand. 

A.  This  is  one  of  the  exhibits  of  the  conspiracy  trials.     It  h  marki 
hibit  No.  63,"  Jacob  Thompson's  account  with  the  Ontario  Bank,  '^ 
This  paper  is  marked  "Drafts  on  the  Ontario  Bank  for  <£6l  12*.  lOd 
drafti*  are  enclosed  in  this  envelope,  which  is  marked  "Exhibit  37." 
the  bank  book  of  J.  W.  Booth,  marked  "  Exhibit  11." 

Q.  Those  papers  are  all  exhibits  belonging  to  the  conspiracy  trials,  a 
been  in  your  possession  as  chief  clerk  > 

A.  Yes,  sir. 

Cross-examination  by  Mr.  Bradley: 

Q.  Have  you  had  charge  of  those  conspiracy  files  ? 

A.  Yes,  sir. 

Q.  Is  there  among  those  files  a  paper  or  package  marked  "  Diary  of  J. 
Booth  ? " 

A.  It  has  never  been  on  file  with  the  records  of  the  trjal  of  the  consj 

Q.  Do  you  know  if  that  diary  has  ever  been  in  your  office  ? 

(Objected  to  by  the  assistant  di.strict  attorney  on  the  ground  that 
amination  was  not  responsive  to  anything  that  had  been  brought  ou 
examination  in  chief,  nothing  having  been  said  on  that  examination  al 
diary  of  Booth.     Objection  sustained.) 

Robkrt  Anson  Campbell,  Teller  Ontario  Bank;  residence,  M 
Canada. 


By  the  Assistant  District  Attorney  : 
Q.  What  is  your  occupation  ? 
A.  I  am  teller  of  the  Ontario  Bank,  Montreal. 


TEIIL   OP  JOHN   H.   8URBATT.  193 

Q.  How  long  have  you  been  teller  there  ? 
A.  For  some  eight  or  nine  years. 
Q.  You  were  teller  there,  then,  in  1865  ? 
A.  Yes,  sir. 

Q.  Will  you  examine  this  paper  contained  in  an  envelope  marked  '*  Exhibit 
No.  63/'  and  state  what  it  is. 

(Mr.  Bradley  objected  to  the  introduction  of  any  proof  in  regard  to  Jacob 
Thompson's  accounts  in  Canada  as  being  irrelevant. 

The  Court.  It  is  just  one  of  those  cases  where  we  have  to  admit  the  testi- 
JDony  for  the  time  being ;  but  if  the  prosecution  fail  to  connect  it  in  any  way 
^th  the  prisoner,  it  will  be  peremptorily  ruled  out. 
To  this  ruling  Mr  Bradley  reserved  an  exception.) 
Q-  State  what  that  paper  is. 

A.  It  is  the  account  of  Jacob  Thompson  with  the  Ontario  Bank,  Montreal. 
Q.  For  what  time  ? 

A.  Commencing  on  June  28,  1864 — ^May  20th  really,  for  that  is  when  he 
°wde  his  first  deposit — and  ending  April  11,  1865.     The  balance  was  then 
•truck,  but  the  account  was  not  closed. 
Q*  What  was  the  balance  then  still  left  to  his  credit  I 
A.  $1,766  23. 

Q-  £xamine  the  papers  marked  "  Exhibit  37,"  and  state  what  they  are. 
^  This  is  a  bill  of  exchange  in  favor  of  J.  Wilkes  Booth  for  c€61  12s.  lOi., 
««Jed  27th  of  October,  1864. 
Q-  I B  that  in  your  account  ? 

j^'  No,  sir.     This  is  a  bill  of  exchange  which  I  sold  Mr.  Booth  on  the  27th 
ofOctober,  1864. 
Q-   That  is  not  in  Thompson's  account  1 
^'   No,  sir;  it  is  a  diflferent  thing. 
•  Q-   «J.  Wilkes  Booth  came  and  bought  a  bill  of  exchange  on  New  York  from 

^  Tes,  sir. 

Q*  ll^hatis  thedateof  it? 

^  5i7th  of  October,  1864 ;  in  three  sets. 

V  Indorsed  and  paid  ? 

,  ^'  l^ot  indorsed.     It  was  payable  to  Mr.  Booth's  order,  but  I  see  it  is  not 
indorsed. 

Q-  Neither  of  the  three  ? 

^'  No,  sir. 

Q-  They  are  still  outstanding  claims  of  yours  on  the  Bank  of  New  York  ? 

j^  No,  sir ;  it  is  sterling  on  our  agents  in  London. 

Y  It  has  not  been  paid  yet  ? 

^-    No,  sir ;  still  outstanding      I  do  not  know  who  will  get  the  money. 
^•'-  Bradley.  We  will  try  and  get  it.     He  is  one  of  the  parties  to  this  suit. 
Q-    State  what  that  is — Exhibit  11. 
-^    This  is  a  pass-book  showing  the  account  of  J.  Wilkes  Booth  with  the 
v>ntario  Bank. 

(*^iie  counsel  for  the  prisoner  desired  it  to  be  understood  that  they  objected  to 
*"®  P'f^iduction  of  each  of  the  three  exhibits;  and  that,  each  said  objection  being 
overruie^^   they   reserved    an   exception    to  the    ruling    in   the   three   cases 
^P^tively.) 
^-    State  what  entry  is  in  that. 
^  It  is  a  deposit  of  $455,  made  October  27,  1864. 
X-  Deposit  by  whom  1 
^-  By  J.  Wilkes  Booth. 
Vi-  h  bis  handwriting  there  ? 


l&l  TRIAL   OF  JOHN   H.   SURBATT. 

.  * 

A.  No,  sir. 

Q.  On  the  certificate  ? 

A.  No,  sir;  not  on  the  certificate  at  all. 

Q.  Will  you  examine  this  account  that  you  first  looked  at,  and  state  wl 
shows  as  to  deposits  made  on  the  6tb  of  April,  and  what  those  pencil-DG 
indicate  in  Thompson's  account  ? 

A.  There  are  three  entries  on  the  6th  of  April — one  for  $7,098 ;  that 
ch(*ck. 

Q.  State  what  that  was  on. 

A.  That  was  deposited  in  a  check.  (After  examination,)  No,  sir,  this  is 
a  deposit.  It  is  a  check  drawn.  He  drew  a  check,  which  we  accepted  i 
day,  for  $7,098.  Then  we  gave  him  a  deposit  receipt  for  8180,000,  for  wl 
he  gave  his  check.  , 

By  Mr.  Pibrrbpont  : 

Q.  That  was  a  deposit  with  you  by  a  check? 

A.  We  gave  him  a  deposit  receipt  in  place  of  keeping  this  deposit  in 
ledger,  for  which  he  paid  us  by  check,  of  course. 

Q.  What  I  want  to  know  is  how  he  got  it  in  your  bank — whether  by  bil 
check. 

A.  He  deposited  sterling  exchange  on  London. 

Q.  That  $180,000  was  deposited  on  sterling  exchange  ? 

A.  No,  sir.  Having  a  large  amount  to  his  credit,  be  just  drew  this  chec 
$180,000  against  his  account. 

Q.  What  was  his  balance  on  the  6th  of  April  ? 

A.  The  papers  don't  show  it.  I  should  say  about  $200,000  before  dra^ 
this  check. 

Q.  When  was  this  $180,000  drawn  ? 

A.  On  the  6th  of  April. 

Q.  And  for  it  you  gave  sterling  ? 

A.  No,  sir.  We  gave  a  deposit  receipt.  Ho  wantel  that  so  that  he  c 
make  use  of  it  in  a  foreign  country  if  he  wanted  to  go  there  or  anywhere  el 

Q.  He  gave  a  check  for  the  receipt  ? 

A.  Yos,  sir.     You  call  them  here.  I  believe,  certificates  of  deposit. 

Q.  What  do  those  pencil-niirks  there  indicate ] 

A.  Those  show  the  amount  of  exchange  he  purchased  on  the  8th  of  Apri 

Q.  You  will  observe  there  that  on  the  6th,  in  that  second  line,  there  are  « 
pencil-marks  ? 

A.  That  is  "  D.  R.,"  deposit  receipt. 

Cross-examination  : 
By  Mr.  Bradley  : 

Q.  By  whom  were  those  pencil-marks  made  ? 

A.  They  were  made  by  myself. 

Q.  Was  the  account  made  out  by  you  ? 

A.  No,  sir ;  but  I  examined  it. 

Q.  Is  this  pencil  memorandum,  "  Close  order  and  deposit  receipt  and  retu 
in  your  handwriting  ? 

A.  No,  sir. 

Q.  Further  down  is  another  memorandum — pencil  fi:^ures  ? 

A.  This  is  a  check  in  favor  of  our  counter  branch  for  a  certain  amount. 

Q.  Is  that  in  your  handwriting] 

A.  No,  sir. 

Q.  Have  you  any  personal  knowledge  of  those  pencil-marks,  when  they  "^ 
made,  and  by  whom  ? 

A.  O,  ye^,  sir;  male  out  by  the  party  who  male  out  the  account — 
bookkeeper. 


TKUL   OF   JOHN   H.   8URRATT.  .  195 

Q  Just  below  there  are  three  or  four  other  entries ;  are  they  iu  his  hand- 

i.  Yes,  BIT. 

By  Mr.  Pibrrbpont  : 

Q.  This  account  I  see  is  headed  "  Jacob  Thompson,"  which  doesn't  convey 
*  ^eiy  definite  idea  as  to  who  Mr.  Thompson  is  ? 
A.  He  passed  in  Canada  as  the  Hon.  Jacob  Thompson. 
Q.  From  where  ? 
A.  From  the  United  States. 

JoHiv  Lee — residence  near  Vicksburg,  Mississipp* — sworn  and  examined. 
By  the  District  Attorney  : 

Q.   "V^here  do  you  reside  ? 

A.  iSetween  Vicksburg  and  Meridian,  Mississippi.  I  have  been  residing  there 
for  the  last  twelve  months. 

Q.   AVbero  did  you  live  previous  to  emigrating  there  ? 

A.    Bere,  in  Washington. 

Q.    Eow  long  did  you  live  in  Washington  ? 

A.  Somewhere  in  the  latter  part  of  1862  I  was  detached  from  my  regiment 
ttid  brought  here.  1  was  detached  from  the  ninety-fifth  New  York  regiment 
•nd  dx-rlered  on  duty  at  the  War  Department,  under  Colonel  Baker. 

Q.    Had  you  resided  in  New  York  before  you  came  to  Washington. 

A.    Yes,  sir. 

Q.    You  enlisted  as  a  soldier  in  the  ninety-fifth  New  York  ? 

A.    Yes,  sir;  1  was  sergeant  of  company  E. 

Q.    Bow  long  were  you  in  the  army  't 

A.    I  enlisted  for  three  years,  and  was  in  three  years,  lacking  ten  days. 
^  Q-    In  what  service  were  you  detailed  ? 

A.  In  the  secret  service,  under  Colonel  Baker,  provost  marshal  of  the  War 
department. 

Q«    You  were  a  detective  officer  under  Colonel  Baker  ? 

^'    Yes,  sir. 

Q*  In  that  capacity,  did  you  have  opportunities  of  becoming  acquainted  with 
"»e  people  here  in  the  city  1 

^'  Yes,  sir;  I  got  more  or  less  acquainted  with  everybody  who  lived  here  in 
WMtiington.  I  was  over  the  streets  every  day,  not  excepting  Sunday,  on  pub- 
Jc  atnj  private  business  for  the  departments,  making  arrests,  looking  into  the 
"^^**tinents,  and  so  on. 

y      Did  you  know  John  H.  Surratt,  the  prisoner  ? 

t^*     1  knew  John  U.  Surratt  by  seeing  bira. 

Y  l«ook  at  the  prisoner  and  state  if  you  recognize  him  ? 

^^  Yes,  sir ;  I  recognize  that  young  man ;  but  he  did  not  have  that  "  goatee  " 
®"^l^«n  I  saw  him. 

^*  State  if  you  saw  him  on  the  14th  of  April,  186*5;  and  if  s>,  where  you 
^^  tim,  and  about  what  time  in  the  day. 

^*  On  the  14th  April — I  was  at  that  time  with  Major  O'Beirne,  the  provost 
"^'^^lial  of  the  District  of  Columbia — I  went  to  the  Wai?hington  depot  with 
!J^^^^rjce  to  men  who  were  deserting.     I  was  not  looking  for  deserters  myself, 

'^J^as  chief  of  the  men  employed  for  that  purpose  under  Colonel  0*Beirne. 

Y  What  force  was  that  ? 

tA  iT  '^^^  detective  force  of  the  Provost  Marshal's  department.     I  went  down 

.^■^e  depot,  and  on  my  way  back,  at  the  corner  of  Sixth  street,  I  stopped  a 

■   'itnuie  to  answer  a  question — the  man  who  asked  it  I  do  not  know — but  he  in- 

IVWr^  about  some  young  fellow  wlio  was  in  my  regiment.     When  I  left  him  I 
^^Unued  on  up  the  avenue,  the  right-hand  side  going  up  towards  Thirteenth 


196  TRIAL  OF  JOHN  H.  SURRATT. 

street.  When  near  Mr.  Stinemetz's  hat  store  I  passed  a  man  whom  I  tXM 
be  John  H.  Surratt.  He  was  coming  this  way,  and  I  was  going  in  an  opp< 
direction.    It  was  between  Franklin's  spectacle  store  and  Stinemctz's  hat  b 

Q.  Are  you  satisfied  the  prisoner  was  that  man  ? 

A.  To  the  best  of  my  knowledge  that  is  the  man.   (Pointing  to  the  prisoi 

Q    Had  you  seen  him  frequently  before  ? 

A.  Not  as  frequently  as  I  have  seen  some  people  about  Washington. 

Q.  How  often  had  you  seen  him  ?     Did  you  know  him  well  by  sight  f 

A.  I  should  suppose  I  had  seen  him  a  dozen  times  before  that. 

Q.  Was  he  walking  rapidly  or  slowly  at  that  time  ? 

A.  He  was  going  in  an  ordinary  gait  I  was  going  fast  myself,  wall 
quickly. 

Q.  I  will  ask  you  if,  on  the  15th — the  next  day— you  were  called  upoi 
make  any  examination,  or  any  investigation,  into  this  matter? 

A.  I  was.  I  went  to  the  Kirkwood  House.  Major  O'Beime  got  an  ordc 
bring  all  his  force  to  the  Kirkwood  House  to  protect  Mr.  Johnson.  I  go( 
order  from  Major  O'Beime  to  go  up  on  top  of  the  house  to  see  that  nobody  o 
in  from  the  roof.  I  detailed  men  to  all  parts  of  the  house ;  and  then  wenl 
on  the  roof  to  look  around.  I  afterwards  went  down  into  the  clerk's  office 
book-stand  in  the  office,  when  a  young  man  came  up  to  me.  Getting  ceil 
information,  I  went  up  to  room  No.  126,  and  finding  it  locked,  endeavore 
get  the  key,  but  it  could  not  be  found.  I  then  got  Mr.  Sprague  to  go  up  si 
with  me.  When  we  got  there  I  asked  him  if  we  should  burst  the  door  o] 
He  said  he  did  not  know ;  that  it  might  make  trouble.  I  told  him  that  I 
an  idea  that  everything  was  not  right  about  that  room.  I  finally  burst  o 
the  door  and  went  in.  Finding  a  pistol,  I  went  down  stairs  to  hunt  for  H 
O'Beirne ;  I  found  he  was  in  a  great  hurry  to  go  up  the  street ;  and  so  he 
me  to  manage  the  matter  myself.  I  then  took  this  young  man,  Mr.  Jones,  w 
I  found  in  the  office,  up  stairs  with  me.  On  the  wall  I  found  a  black  coat  hi 
ing,  in  the  pockets  of  which  was  a  spur,  and  also  a  bank  book  of  J.  Wilkes  Be 

Q.  Look  at  that  book  and  state  if  that  is  it.  (Handing  witness  bank-l 
of  J.  Wilkes  Booth.) 

A.  That  is  the  book. 

Q.  What  else  did  you  get? 

A.  It  is  very  difficult  for  me  to  get  at  these  things  as  I  did  before,  becau 
is  a  long  time  ago,  and  I  have  not  kept  any  notes  whatever. 

Mr.  PiERRBPONT.  It  is  not  of  the  least  consequence  that  you  should  s 
them  in  the  same  order. 

Witness.  I  got  from  the  pockets  also  a  handkerchief,  and  a  half  stic 
black  licorice.  1  then  went  to  the  bed,  lifted  the  covering,  and  got,  betv 
tlie  sheet  and  the  mattress,  a  large  bowie-knife,  with  a  red  case  around  it 
then  hunted  the  room  all  over  to  see  if  I  could  find  any  letters  or  papers 
did  not  find  anything  else.  I  took  the  coat,  and  these  things  that  I  had  foi 
and  went  down  stairs  to  the  parlor,  right  next  to  the  Vice-President's  room.  1 1 
them  until  Major  O'Beirne  came  in.  Major  O'Btirne  picked  them  up  and 
ried  them  into  Mr.  Johnson's  room  ;  showed  them  to  him,  and  then  brov 
them  out  and  gave  them  to  me.     1  locked  them  up  at  my  own  house. 

Q.  State  where  Mr.  Johnson's  room  was  with  reference  to  this  room  fi 
which  you  took  these  things  1 

A.  It  was  on  the  next  floor  above. 

Q.  Which  was  above,  President  Johnson's  room  or  No.  126  ? 

A.  Mr.  Johnson's  room  was  on  the  second  floor  facing 

Q.  On  what  floor  was  this  other  room? 

A.  The  third  floor. 

Mr.  PiERiiEPoNT.  Before  you  go  any  further  I  want  to  fix  one  thing.  I 
derstand  from  my  associate  that  the  witness  said  he  found  this  paper  (hold 


TRIAL   OP   JOHN   H.   SUBRATT.  197 

vp  a  piece  of  paper)  in  this  bank-book.   I  did  not  so  understand  him.   I  want  to 
ascertain  whether  that  is  so. 

Q.  Was  this  paper  in  the  book  at  the  time  yon  found  it  ? 

A,  I  never  saw  that  paper  before  now. 

(^  60  on  and  state  what  else  you  did  with  these  things. 

A.  The  next  day  Major  O'Beirne  came  and  gave  mo  an  order  to  hook  up  the 
hone  and  wagon  and  take  this  bundle  to  Secretary  Stanton's. 

Q.  Was  that  the  same  day  ? 

A.  That  was  the  next  day — Sunday.     I  went  and  showed  them  to  Mr.  Stan- 
ton, and  told  him  we  had  showed  them  to  the  President.     He  was  very  angry. 

District  Attorn  by.  Never  mind  about  that 

Witness.  I  gave  him  the  things  and  he  handed  them  back  to  me.  He  ex- 
^nuned  them  all  carefully  except  the  pistol.  He  didn't  care  to  look  at  that. 
He  told  me  to  roll  them  up  and  keep  tnem  in  my  possession  until  the  military 
^Bumasion  tried  the  parties  at  the  arsenal.  I  was  then  sent  for  to  bring  those 
I^Sa,  and  J  took  them  up  to  Judge  Holt's  office  and  delivered  th  ^m  to  Judge 
id?ocate  Burnett. 
Q*  That  was  the  last  you  saw  of  them  ? 

•^  Yes,  sir ;  until  I  saw  them  in  court.    I  see  some  of  them  here  now, 
Q.  Have  you  seen  them  within  a  day  or  two  ? 
•^  No,  sir ;  I  have  not  seen  them  since  I  left  them  in  possession  of  the  gov- 


The  court  here  took  a  recrss  of  half  an  hour. 

AFTERNOON   SESSION. 

JoH  M  Lbb  cross-examined  : 

By  Mr.  Bradley  : 
9*  ^ou  say  you  were  a  detective  officer  in  the  force  of  Colonel  Baker,  in  the 
V^^S  of  1865,  and  then  in  that  of  Colonel  O'Beime  ? 
A.   No,  sir  ;  not  in  1865. 
Q»    "When  did  you  go  under  Colonel  O'Beirne  ? 

A.    I  could  not  give  you  the  exact  date,  it  was  before  1865,  1  think ;  I  was 
with  Oolonel  Baker  before  1865. 
Q»    Sow  long  were  you  with  Colonel  Baker  ? 
A.    -A  year  or  more. 
Q.   AVhatyear? 
A.    1863, 1  think,  and  1864. 
Q*   C3an  you  come  no  nearer  to  it  1 
A.    >fo,  sir ;  not  by  my  memory. 

Q-  That  year  was  embraced  in  the  years  1863  and  1864  T 

A.   I  left  Aquia  Creek  at  the  first  burning  of  the  place  by  General  Bumside. 

I  came  to  Washington  and  went  to  Colonel  Rucker's  office  (now  General  Rucker) 

wiA  Captain  West,  who  was  post  quartermaster  at  Aquia  Creek.    While  1  was 

there  Colonel  Baker  met  me  and  asked  me  what  I  was  doing.     1  told  hira  we 

hid  all  left  Aquia  Creek ;  that  Fredericksburg  was  all  gone,  and  that  we  had 

come  to  Washington. 

Q-  I  do  not  desire  you  to  go  over  all  that ;  what  I  wanted  to  know  was  when 
yon  left  Colonel  Baker  and  went  with  Colonel  O'Beirne  ? 
A.  I  think  it  was  in  1864. 
Q-  What  time  of  the  year? 
A  I  cannot  recollect  the  exact  time. 
Y  Ww  it  in  the  winter,  spring,  or  fall  ? 
A-  I  cannot  tell  that. 
J  Did  you  go  directly  to  Colonel  O'Beime  1 


BUT. 


198  TRIAL  OP  JOHN  H.   8URRATT. 

Q.  What  did  you  do  after  you  left  Colonel  Baker? 

A.  I  went  with  Captain  PntnaDoi.  Major  0*Beime  succeeded  Gaptain  ! 
nam. 

Q.  What  was  Captain  Putnam's  duty  ? 

A.  He  was  captain  of  the  detective  force  in  the  provost  marshal's  office 
got  my  discharge  from  my  regiment  a  few  days  before  T  went  with  hioi. 
Secretary  of  War  gave  me  my  discharge  some  ten  days  before  my  time  was 
to  take  an  office,  but  I  did  not  accept  the  office. 

Q..  Were  you  in  the  military  service  while  you  were  under  Baker? 

A.  Yes,  sir ;  in  the  United  States  military  service. 

Q.  What  was  your  position  ? 

A.  Sergeant. 

Q.  And  you  then  went  with  Captain  Putnam.    Where  was  his  headquarti 

A.  At  the  corner  of  19th  and  I  streets. 

Q.  State  whether  your  duties  confined  you  very  much  to  that  office*  or  whe 
you  were  much  about  town  while  you  were  with  Captain  Putnam. 

A.  I  was  all  the  time  on  duty  going  about — very  busy. 

Q.  Can  you  state  when  you  went  under  Colonel  O'Beirne  ? 

A.  Captain  Putnam  resigned  and  Colonel  O'Beime  took  his  place.  'It mi 
be  six  months  before  the  assassination,  and  it  might  be  a  little  more  than  th. 

Q.  That  was  in  the  fall  of  1864  ? 

A.  Yes,  sir.  ^ 

Q.  And  you  cannot  tell  how  long  you  were  with  Captain  Putnam  f 

A.  No,  sir ;  Captain  Putnam  was  not  there  long  after  I  went  with  him. 

Q.  A  month,  six  weeks,  or  two  months  1 

A.  O  yes,  sir  ;  more  than  that.  I  suppose  I  was  there  with  Captain  Puti 
about  six  months. 

Q.  And  with  Colonel  O'Beirne  about  six  months,  which  would  make  a  y 
before  the  assassination  ? 

A.  About  that  time. 

Q.  And  you  left  Baker  some  time  in  the  spring  of  1864  ? 

A.  I  cannot  tell ;  I  do  not  know  the  date  when  I  left  Colonel  Baker.  1 
had  my  discharge  1  could  tell. 

Q.  When  did  you  first  see  Surratt  ? 

A.  The  men  were  sent  round  looking  after  people  who  were  carrying  m( 
cines  tlirough  the  lines.  Sometimes  there  would  be  fifty  notices  and  sometin 
three  or  four  notices  of  people  running  the  blockade,  carrying  quinine,  m 
phine,  &c.  There  was  a  good  deal  of  excitement  about  it  among  all  the  n 
on  the  force.  They  were  sent  to  hunt  up  these  men.  Every  now  and  tli 
some  one  would  be  pointed  out  as  a  suspicious  person. 

Q.  Did  you  understand  my  question — when  did  you  become  acquainted  w 
Surratt  ? 

A.  It  was  during  this  time.  We  were  looking  after  parties  carrying  quin 
and  morphine. 

Q.  W  hat  time  was  that  ? 

A.  The  time  myself  and  the  men  arrested  a  man  by  the  name  of  Bayley  i 
a  Miss  Buckner. 

Q.  I  want  you  should  tell  about  what  time  it  was. 

A.  I  could  not  tell  without  seeing  Colonel  Baker's  books ;  I  cannot  recol 
the  dates. 

il.  Do  you  recollect  where  Surratt  was  pointed  out  ? 

A.  The  first  place  he  was  pointed  out  to  me  was  down  by  the  Baltimore  de 
Washington. 

Q.  How  long  was  that  before  the  assassination  ? 

A.  I  could  not  tell  how  many  months ;  it  was  a  long  time  before  the  ossass 
tiou. 


TRIAL  OP  JOHN  H.  8URKATT.  199 

Q.  Wm  he  riding,  walking,  or  sitting  ?  Where  was  he  t  State  whether  any- 
bodj  was  with  him. 

A.  I  do  not  recollect  whether  there  was  or  not. 

Q.  When  did  you  see  him  afterwards  ? 

A.  I  saw  him  on  the  avenue,  and  I  saw  him  on  the  road  going  across  the  East- 
en  Branch  bridge. 

Q.  How  often  ? 

A,  Once  or  more ;  I  do  not  recollect. 

Q.  Did  yon  know  where  he  was  living  then  ? 

A.  No,  sir ;  I  did  not. 

Q.  You  did  not  know  whether  he  belonged  hero  or  somewhere  else  ? 

A.  No,  sir ;  I  could  not  say  whether  he  belonged  in  the  city  of  Washington  or 
OQtside  the  city.  I  had  no  particular  notice  about  him,  more  than  generally  that 
he  was  a  rebel. 

Q*  Was  it  not  your  duty  to  find  out  who  he  was  and  where  he  belonged,  in  or- 
der to  prevent  him  as  well  as  others  from  going  through  the  lines  ? 

A.  The  same  as  any  other  person  that  there  was  any  suspicion  about. 

Q.  Ou  that  sort  of  duty  did  you  not  find  out  who  these  people  were,  a  great 
many  of  them  1 

A.  I  did. 

Q.  Was  it  not  a  part  of  your  duty  to  find  out  who  they  were,  and  where  they 
belonged  ? 

A.  Some  of  them  I  found  out  the  exact  locality.  It  was  our  duty,  if  we  had  a 
special  order  to  that  effect. 

Q-  When  you  were  informed  that  such  a  person  was  carrying  passengers  or 
medicines  through  the  lines,  was  it  not  your  duty  to  ascertain  who  they  were  and 
where  they  belonged,  without  any  special  orders  ? 

A.  Not  particularly.  We  got  our  orders  through  the  office,  and  when  they 
"^ted  to  any  particular  party,  if  we  could  not  get  names,  we  took  a  description. 

Q.  When  they  were  pointed  out,  was  it  not  a  part  of  your  duty  to  find  out 
where  they  were,  and  who  they  were  ] 

A.  Yes,  sir,  if  there  was  any  special  charge  against  them. 

Q-  The  charge  against  Surratt  was  that  he  was  carrying  quinine,  calomel, 
fe-f  to  the  enemy.     Did  you  ever  try  to  find  out  who  John  Surratt  was  ] 

^'  No,  sir ;   I  did  not. 

Q*  Ordinarily  when  you  saw  him,  was  he  riding  or  walking  ? 

^  I  never  saw  him  on  horseback  at  all,  nor  in  a  carriage. 

Q-  Then  when  you  saw  him  going  down  towards  the  navy-yard  bridge,  was 
he  on  foot] 

^  Yes,  coming  up  from  the  Eastern  Branch  bridge  on  foot, 

Q'  What  was  his  ordinary  dress] 

^  I  could  not  tell  you  that. 

Q*  You  could  not  tell  how  a  man  you  were  cautioned  against  was  dressed,  or 
*here  he  was  located? 

^-  I  did  not  tell  you  I  was  cautioned  against  Surratt. 

Q-  Did  you  not  tell  us  he  was  pointed  out  as  one  of  those  people  suspected 
^passing  through  the  lines,  and  a  rebel  ? 

^  I  did  not  say  he  was  carrying  anything  through  the  lines. 
.  Q*  You  did  not  say  he  was  pointed  out  as  a  suspected  person  going  through 
"»«  fees,  and  a  rebel? 

^  1  said  that  he  was  liable  to  be  pointed  out  to  me,  or  to  any  of  the  men,  as 
*P«HM)n  suspected. 

X'  Bid  you  say  he  was  liable  to  be  pointed  out  as  a  person  suspected,  or  did 
y^^  say  he  was  pointed  out  as  a  person  suspected  ? 

"^  I  said  he  was  pointed  out  tiie  same  as  others  were  to  me,  as  a  sospicioas 


200  TRIAL   OF  JOHN   H.   SUBBATT. 

Q.  As  a  snspicioas  person  about  going  through  the  lines  { 

A.  Yen,  sir. 

Q.  Then  he  was  pointed  out  to  you  as  a  suspicious  person  { 

A.  Some  of  the  men  said  "  this  man  goes  through  the  lines." 

Q.  Did  you  observe  whether  he  wore  the  same  sort  of  dress  commoi 
not»  or  whether  he  changed  his  dress  ;  whether  there  was  any  disguise  ? 

A.  No,  sir ;  I  never  saw  any  disguise  at  all. 

Q.  Did  you  ever  see  any  change  of  dress  that  attracted  your  attention  I 

A.  No,  sir ;  I  did  not. 

Q.  You  could  not  tell  how  he  was  dressed  ? 

A.  No,  sir ;  there  was  nothing  that  induced  me  to  pay  particular  attent 

(4.  There  was  nothing  that  induced  you  to  mark  a  man  you  were  on  the 
out  for  ? 

A.  I  was  not  on  the  lookout  for  Surratt. 

Q.  You  were  not  on  the  lookout  for  a  man  who  was  suspected  ? 

A.  Not  eopecially. 

Q.  Were  you  not  on  the  lookout  for  other  men  suspected  of  going  th 
the  lines  ] 

A.  No,  sir ;  there  were  a  great  many  men  pointed  out  that  I  never  pai 
particular  attention  to. 

Q.  Then,  did  you  pay  any  attention  to  Surratt  1 

A.  No,  sir. 

Q.  Can  you  tell  whether  he  wore  a  goatee,  whiskers,  or  moustache  a 
time] 

A.  I  think  he  had  a  little  beard  on  his  lip ;  I  am  not  positive  about  thi 

Q.  Can  you  tell  anything  about  the  color  of  his  moustache  or  hair? 

A.  It  was  the  same  color  it  is  now,  sandy. 

Q.  I  am  not  speaking  of  what  it  is  now.  Can  you,  without  looking  al 
from  the  picture  in  your  mind,  say  whether  he  had  a  moustache  or  bean 
wfiat  was  the  color  of  his  hair? 

A.  I  think  he  had  a  little  beard  on  his  upper  lip,  a  moustache,  and  that  i 
sandy  in  color. 

Q.  Is  that  from  memory  or  from  what  you  see  now  ? 

A.  No,  sir ;  it  is  not  from  what  I  see  now  at  all. 

Q.  Now  tell  us  what  notice  you  had  ever  taken  of  him  ? 

A  They  would  go  along  and  say,  "  There  goes  a  rebel ;"  I  would  look  J 
so  that  I  would  know  him  again  when  I  saw  him. 

Q.  You  would  know  hini  so  well  that,  in  the  course  of  a  year  or  two,  b 
never  exchanged  a  word  with  him,  and  seeing  him  pass  by  in  the  streei 
would  say  that  was  him  1 

A.  I  might  be  mistaken  in  that,  too. 

Q.  AVad  there  anything  on  the  14th  of  April  in  your  mind  to  direct  yc 
tention  particularly  to  John  H.  Surratt  ? 

A.  No,  sir. 

Q.  Did  you  meet  him  ? 

A.  I  passed  him  on  the  street. 

1^.  How  was  he  dressed  ? 

A.  I  cannot  tell 

Q.  Did  you  turn  around  and  look  at  him  ? 

A.  No,  sir ;  I  did  not. 

Q.  Were  you  examined  before  the  military  commission  in  the  cons 
trial  after  the  assassination  ? 

A.  Yes,  sir ;  I  was  a  witness  on  that  trial. 

Q.  Did  you,  as  a  witness  on  that  trial,  say  one  word  of  having  seen  J* 
Surratt  on  the  14th  of  April  ? 

A.  I  never  was  asked  the  question. 


TRIAL   OP  JOHN   H.   8URBATT.  201 

Q.  Did  not  you  know,  in  your  office  as  detective,  and  especially  in  your  re- 
lation with  the  apprehension  of  the  conspirators,  that  it  was  most  important  to 
find  out  whether  John  H.  Surratt  was  here  or  not  ? 

A.  No,  sir;  I  did  not  think  so. 

Q.  Did  yon  tell  any  human  being  that  you  had  seen  him  ? 

A.  No,  sir ;  I  do  not  know  that  I  did. 

Q.  Before  you  appeared  as  a  witness  on  the  conspiracy  trial,  were  you  ex- 
amined as  to  what  you  knew  by  any  officer  of  the  government  1 

A,  I  had  some  Questions  asked  me  by  a  deputy  judge  advocate. 

Q.  By  whom,  Mr.  Bingham  ? 

A.  Colonel  Burnett,  I  think. 

Q.  Did  not  you  know  that  it  was  of  first  importance  to  find  out  whether 
John  H.  Surratt  was  concerned  in  that  assassination  or  not  ? 

A.  No,  sir;  I  had  no  thought  about  John  H.  Surratt.  The  only  man  I  had 
special  thought  about  was  Atzerodt. 

(I  When  did  you  ever  think  of  John  H.  Surratt  as  connected  with  it  1 

A.  I  heard  general  talk  about  the  complicity  of  John  H.  Surratt,  but  I  had 
nothing  to  do  with  him ;  my  whole  business  was  after  Atzerodt. 

Q-  Was  not  your  business  to  find  out  every  man  connected  with  the  assas- 
sination? ' 

A.  My  whole  time  was  taken  up  with  Atzerodt. 

Q.  Was  it  not  your  business  to  communicate  all  the  information  you  had 
ttpon  the  subject  relating  to  any  man  charged  with  that  conspiracy  ? 

A.  It  was  my  business  to  find  out  anything  against  him. 

Q-  Did  not  you  know  that  John  Surratt  was  charged  as  one  of  the  con- 
spirators? 

A.  I  heard  it  said  so. 

Q'  Was  it  not  a  common  subject  of  conversation  ? 

A.  Yes,  sir,  it  was. 

Q«  Was  there  not  evidence  about  him  on  the  trial  ? 

A.  No  question  was  ever  put  to  me. 

Q-  Was  anything  said  by  you  on  the  trial  about  Surratt  ? 

A.  I  do  not  know  that  there  was. 

Q-  Did  you  ever  communicate,  then,  to  any  human  being  about  your  having 
*^n  Sorratt  ? 

A.  No,  sir ;  I  do  not  think  I  told  any  one  of  having  seen  Surratt  until  I  was 
°^ht  here,  at  this  time. 

Q-  Who  did  you  tell  then  ? 

A.  I  told  one  or  two  of  my  friends  or  acquaintances. 

Q*  Who  else  did  you  tell  besides  a  friend  or  two  of  yours  ] 

A'  I  do  not  know  that  I  told  anybody  else. 

Q'  Were  you  not  interrogated  as  to  what  you  could  prove  on  the  trial  by  an 
^^cer  of  the  government  ? 

^  Here  ?    No,  sir 

V'  You  were  not  examined  by  the  district  attorney,  or  anybody  else,  here  ? 
.^'  I  simply  said  to  him,  "  How  do  you  do,  sir;"  and  I  spoke  to  one  of  the 
*^  counsel  and  asked  him  who  I  was  a  witness  for. 

.  \'  You  did  not  tell  anybody  connected  with  the  government  about  your  hav- 
jSseen  John  H.  Surratt  on  the  14th  of  April,  at  anytime  since  you  have  been 

^  Yes,  sir,  I  did. 


I 


Q- Who  did  you  tell? 
A  I  told  the  district  i 


-  told  the  district  attorney. 
X*  I  thought  you  did  not  tell  the  district  attorney  ? 
14 


202  TRLAIi   OF   JOHN   H.   SUEKATT. 

A.  Yes,  sir ;  I  told  Mr.  Wilaon. 

Q.  I  asked  you  if  you  did  not  tell  the  district  attorney  and  you  said  "  N 
Now  you  correct  yourself. 

Mr.  PiERREPONT.  O,  no ;  he  did  not  correct  himself. 

3Ir.  Bradley.  I  beg  your  pardon,  I  am  speaking  to  the  witness.  If  ] 
have  any  objection,  make  it  to  the  court. 

Mr.  PiERREPONT.  I  do  objcct. 

The  Court.  Go  on  with  the  cross-examination. 

Q.  Now  I  ask  you,  did  you  not  tell  the  district  attorney  about  this  ? 

A.  May-be  I  can  give  you  the  exact  words.  He  asked  me  if  I  was  acquain 
with  Surratt.  I  told  him  "  Yes."  He  asked  me  if  I  was  well  acquainted  w 
him.  I  told  him  "  No,  only  by  sight."  He  then  asked  me  when  I  last  saw  hi 
I  told  him,  "  On  the  14th  of  April." 

Answer  objected  to  by  Mr.  Pierrepont. 

Mr.  Bradley.  I  endeavored  to  stop  him  from  stating  his  conversation, 
merely  wanted  to  know  whether  he  did  not  communicate  to  the  district  attoro' 
about  his  having  seen  Surratt. 

Mr.  Pierrepont.  We  do  not  object  to  that. 

Q.  Now  I  want  to  know  who  else  you  told  it  to  besides  the  district  attom« 

A.  Mr.  Wilson. 

Q.  Who  else] 

A.  I  think  I  told  it  to  Mr.  Butler. 

Q.  What  Butler  ? 

A.  Ferdinand  Butler. 

Q.  Who  else? 

A.  I  may  have  made  a  remark  out  in  the  witness-room. 

Q.  I  mean  before  you  came  to  the  court-house  at  all  ] 

A.  I  did  not  speak  to  anybody  before  I  came  to  the  court-house. 

Q.  When  did  you  come  to  the  court-house  ? 

A.  I  came  here  on  Sunday  morning. 

Q.  And  you  did  not  tell  anybody,  except  the  district  attorney,  what  y« 
knew  about  this  matter,  unless  you  spoke  to  Mr.  Butler  about  it. 

A.  I  may  have  spoken  to  two  or  three  persons  about  it. 

Q.  Who  else  do  you  recollect  except  Mr.  Butler  ? 

A.  I  recollect,  I  think,  Mr.  Tucker. 

Q.  What  Tucker  ? 

A.  He  lives  at  Mr.  Butler's,  I  believe. 

Q.  When  did  you  tell  him  about  it  ] 

A.  I  think  it  was  yesterday. 

Q.  And  you  do  not  recollect  anybody  else  1 

A.  Nobody,  that  I  recollect  now. 

Q.  Did  you  speak  of  it  to  any  one  who  wrote  it  down  or  made  a  note  of  wh^ 
you  said  ? 

A.  Not  to  my  knowledge.  I  did  not  see  anybody  writing.  It  may  bavebe^ 
done  behind  me. 

By  a  Juror  : 

Q.  The  first  time  you  saw  Surratt,  who  pointed  him  out  ? 

A.  Some  one  of  the  men  of  the  force.  I  do  not  know  who  it  was.  Th©« 
things  would  happen  sometimes  a  dozen  times  a  day.  It  is  the  peculiar  b(i| 
ness  of  the  men  to  go  about  all  the  time.  They  do  not  know  sometimes  w^* 
they  are  looking  for,  and  it  is  a  common  thing  for  them  to  remark,  seeing 
person  pass,  that  is  so  and  so« 


TEIAL  OF  JOHN  H.  SUBBATT.  203 

Q.  Do  70U  recollect  the  date  when  jou  first  saw  him  1 
A.  No,  sir. 

Bj  Mr.  Bradley  : 
Q.  "What  time  in  the  day  was  it  that  you  overtook  Surratt  on  the  avenue  ? 
A.  I  think,  as  near  as  I  can  tell,  it  was  between  3  and  5  o*clock.     I  wanted 
to  ^et  up  to  the  office. 
Q.  And  you  were  walking  rapidly  past  him  ? 
A.  Going  at  my  ordinary  gait. 
Q.  Did  you  not  say  you  were  walking  fast  ? 
A.  I  always  walk  fast. 

Q.  You  were  walking  fast  and  he  was  walking  slow? 
A.  Ye8,  sir. 

Q.  This  was  between  3  and  4  o'clock,  as  well  as  you  recollect  ? 
A.  Between  3  and  5. 

By  a  Juror  : 
Q.  I  understood  you  to  say  that  he  was  going  down  1 
A.  I  was  going  on  the  right-hand  side  of  the  street.     He  was  on  the  left- 
hand  side  of  the  pavement,  near  the  curb. 
Q.  Then  you  met  him;  you  did  not  pass  him  ? 

A.  I  passed  him  on  the  sidewalk.     He  was  going  the  other  way  from  what 
1  was. 

Q.  You  said  you  were  walking  rapidly  and  he  was  walking  slowly.    How  fast 
vaa  he  walking  ? 
A.  He  was  walking  ordinarily  along ;  not  so  fast  as  I  did. 
Q-  You  do  not  recollect  the  time  when  you  first  saw  him? 
A.  No,  sir ;  I  do  not. 
Samuel  A.  Rainey  sworn  and  examined. 

Bj  Mr.  PlERRKPONT: 

Q-  Whore  do  you  live? 

A.  In  Washington.     I  have  lived  in  Washington  about  twenty  years. 

Q-  W'^hat  is  your  business  ? 

A.  My  business  for  the  last  twelve  or  fourteen  years  has  been  dealing  iu 
iiorses  and  keeping  a  livery  stable. 

Q-  Where  has  been  your  livery  stable  the  last  four  or  five  years  ? 

A  On  .Sixth  street. 

Q*  In  the  same  place  ? 

A-  No,  sir ;  in  two  diflferent  places. 

Q-  State  where  it  was  from  tne  1st  of  January  to  the  1st  of  June,  ISSt**. 

A  It  was  on  Sixth  street,  south  of  the  avenue.     1  did  not  keep  the  stable  at 
that  time.    I  was  there,  and  kept  my  horses  there  occasionally. 

Q-  When  did  you  first  take  an  interest  in  the  stable  ? 

l^'iTNEss.  Which  one? 

^^^- PlERRKPONT.  Either. 

^-  I  could  not  say  exactly  the  date. 

Q-  It  was  as  early  as  January,  1864  ? 
,      1  ^*  ^^  might  be.     I  am  not  positive.     I  have  been  in  business  all  the  time ; 
^^[l am  not  positive,  from  the  fact  that  I  never  kept  any  account  of  it. 

Q-  What  do  you  think  about  its  being  in  January,  1864  ? 

^-  I  do  not  think  I  had  the  stable  in  1864. 

X-  When  did  you  first  have  an  interest  in  any  stable  ? 

A«  I  have  had  an  interest  in  stables  for  the  last  twelve  years. 

Sc-  When  in  '64,  and  in  what  stable  were  you  interested  ? 


204  TBikL  OF  JOHN  H.   SURBATT. 

A.  I  was  keeping  a  stable  at  the  corner  of  Sixth  and  G  streets,  and 
buying  and  selling  some  horses. 

Q.  When  did  you  take^this  stable  you  occupied  in  1865;  when  was  it 
opened  by  you? 

A.  I  took  it  the  1st  of  January,  1865,  to  the  best  of  my  recollection. 

Q.  Who  took  it  with  you  ? 

A.  Dr.  Cleaver ;  his  name  is  William  E.  Cleaver. 

Q.  Was  he  a  veterinary  surgeon  ? 

A.  Yes,  sir. 

Q.  How  long  did  you  and  Cleaver  continue  together  in  that  business  f 

A.  To  the  best  of  my  recollection  some  eight  or  nine  months ;  not  qu 
year. 

Q.  He  and  you,  from  the  1st  of  January  to  the  Ist  of  June,  were  partne 

A.  Yes,  sir. 

Q.  Were  you  equal  partners  i 

A.  Yes,  sir. 

Q.  Did  you  keep  the  books  of  the  firm  1 

A.  They  were  kept  by  Dr.  Cleaver.  My  health  was  bad  during  that ; 
I  was  very  little  at  the  stable ;  and  it  is  bad  still.  I  was  there  off  and  on 
not  regularly. 

Q.  Did  you  know  John  Wilkes  Booth? 

A.  Only  by  name.     I  was  not  acquainted  with  him. 

Q.  Did  he  come  to  your  stable,  and  did  you  see  him  there  two  or  three  tii 

A.  I  remember  seeing  him  there  once  or  twice ;  once  that  I  remember. 

Q.  I  suppose  you  know  what  Surratt  came  there  for ;  if  so,  state. 

A.  Yes,  sir.  It  is  customary  for  men  coming  there  to  have  busii 
generally. 

Q.  What  was  his  business  ? 

A.  Surratt  came  there  on  one  occasion  to  get  a  horse.  * 

Q.  At  what  time  was  that  ? 

A.  I  do  not  remember.     My  partner  hired  the  horse. 

Q.  You  saw  him  there  ? 

A.  I  saw  him  there. 

Q.  Have  you  any  memory  of  what  kind  of  a  horse  that  was  ? 

A.  To  the  best  of  my  recollection  it  was  a  bay  mare. 

Q.  Do  you  remember  what  time  in  January  it  was,  or  whether  it  w« 
January  ? 

A.  1  do  not. 

Q.  Was  it  in  January  or  February  ? 

A.  I  cannot  say. 

Q.  It  was  after  the  1st  of  January? 

A.  It  was  after  the  1st  of  January,  for  we  did  not  take  the  stable  until 
1st  of  January. 

Q.  You  say  your  partner  kept  the  books ;  look  at  the  books  now  shown 
and  state  whether  these  are  the  books  of  the  firm  ? 

A.  Yes,  sir ;  these  books  have  been  used  at  the  stable. 

Q.  Whose  handwriting  are  they  in  ? 

A.  Dr.  Cleaver's,  principally. 

William  E.  Cleaver  sworn  and  examined. 
By  Mr.  Pibrrbpont  : 
Q.  Are  you  the  Dr.  Cleaver  who  kept  a  livery  stable  in  1865  ou  Si 
street  ? 
A.  Yes,  sir. 

'  what  place  ?^ 


THIAL  OF  JOHN  H.  9UBRATT.  205 

A.  Near  the  corner  of  Maryland  avenue ;  between  B  street  and  Maryland 
HFenae. 

Q.  When  did  you  commence  there  ? 

A.  In  January,  1865. 

Q.  "Who  kept  the  books  of  the  firm  ? 

A.  I  did. 

Q.    W^ho  was  your  partner,  if  you  had  any  ? 

A.   Jlir.  Rainey. 

Q.   Did  you  see  him  on  the  stand  ? 

A.    ^^0,  sir;  I  was  not  here. 

Q.    Samuel  A.  Rainey,  was  it  ? 

A.    ^ea,  sir. 

Q.    Have  you  seen  him  lately  ? 

A.    "Yes,  sir;  I  saw  him  in  the  witnesses'  room  just  now. 

Q.    liow  long  did  he  and  you  continue  as  partners  7 

A.    -About  eighteen  months. 

Q.    What  was  your  business  then  ? 

A.   liivery  stable  and  veterinary  surgeon. 

Q.    How  long  had  you  been  a  veterinary  surgeon  ? 

A.   Seventeen  years  in  this  city. 

Q.   How  long  have  you  lived  here  ] 

A.  About  seventeen  years. 

Q.  Were  you  educated  as  a  veterinary  surgeon  1 

A.  Yea,  sir. 

Q-  In  1865,  or  prior  to  1865,  did  you  keep  any  other  stable  in  any  other 
place? 

A.  Yes ;  I  kept  a  stable  on  B  street. 
Q-  Did  you  know  J.  Wilkes  Booth  1 
A.  Yes,  sir. 

Q-  T)id  you  know  John  H.  Surratt  t 
A.  Yes,  sir. 

Q-  How  long  have  you  known  John  H.  Surratt  1 
A.  About  twelve  years,  I  think — ten  or  twelve  years. 
Q-  Have  you  had  a  speaking  acquaintance  with  him  ? 
A.  Yes  sir. 

Q'  What  was  the  mode  in  which  you  addressed  him  and  he  addressed  you  ? 
.^-  He  came  down  to  hire  a  horse  of  me  at  the  time  Booth  kept  his  horse 
with  me. 

Q-  What  did  you  call  him  and  what  did  he  call  you  t 

^'  I  usually  called  him  "John,''  and  he  called  me  "  Doc." 

Q-  When  did  Booth  first  bring  his  horse  to  you  to  keep  ] 

^'  The  1st  of  January,  1865 — the  day  we  got  the  staole. 

Q-  And  to  that  stable  on  Sixth  street  ] 

^-  les,  sir. 

Q-  What  was  the  health  of  your  partner  at  this  time  ? 

A  He  is  sickly  all  the  time. 

^J-  Bradley.  What  on  earth  has  all  this  to  do  with  this  case  ? 

I  he  Court.  I  cannot  see  its  relevancy. 

^Ir.  PiBRRBPONT.  I  think  your  honor  will  see  some  relevancy  before  we  are 
tnrougt^    It  is  a  single  fact  proven  by  itself. 

T-  State  what  horse  Booth  brought 

A.  He  brought  a  one-eyed  bay  horse  first. 

Q- What  next? 

A-  About  ten  days  afterwards  he  brought  a  light  bay  horse,  very  light  bay. 

V  Did  he  bring  any  others  ? 


206  TRIAL  OF  JOHN  H.  8URRATT. 

A.  No,  sir. 

Q.  At  what  time  was  this  ? 

A.  In  January,  1865.     I  thitik  you  will  find  it  in  the  book  there. 

Q.  State  whether  you  saw  him  and  Surratt  there  together. 

A.  Yes  sir. 

Q.  What  were  they  there  together  about  ?     What  did  they  say  and  do  ? 

A.  I  do  not  know ;  the  first  time,  I  hired  a  horse  to  them. 

(Objected  to  by  Mr.  Bradley,  as  having  nothing  to  do  with  the  conspiracy. 

Mr.  Pierrepont  said  they  would  connect  it  with  the  conspiracy. 

Question  allowed  by  the  court,  to  be  ruled  out  if  not  connected  subsequently.) 

A.  The  first  time  I  saw  Surratt  there  with  Booth,  Booth  came,  I  think,  and 
paid  one  or  two  weeks'  livery.  Then,  three  or  four  days  after,  he  came  down 
and  I  hired  him  a  horse  to  go  into  the  country. 

Mr.  Bradlby.  Hired  to  whom? 

A.  To  Surratt.  He  came  and  hired  a  horse  two  or  three  times.  The  next 
time.  Booth  and  Sam.  Arnold  came  there  together. 

Mr.  Bradley.  I  must  object  to  that.  Sam.  Arnold  is  not  named  in  the  ia 
dictment. 

The  District  Attorney.  Your  honor  will  remember  that  the  count  in  tk. 
indictment  refers  to  "divers  persons  to  the  jurors  unknown." 

The  Court.  If  you  show  that  Arnold  was  connected  with  the  conspiracy 
the  evidence  will  be  proper. 

Mr.  Bradley.  That  is  all  we  desire. 

Mr.  Pierrepont.  I  understand  that  we  shall  show  that. 

A.  The  last  time  Surratt  came  there  and  hired  a  horse  he  came  there  aboxj 
three  or  four  o'clock  in  the  afternoon. 

Q.  When  was  that? 

A.  That  was  the  25th  of  January,  1865. 

Q.  Previous  to  that  time,  when  he  had  met  Booth  there,  had  he  any  conver 
sation  with  him  ? 

A.  He  always  came  with  him,  except  on  this  occasion. 

Q.  On  this  occasion,  who  did  he  come  with  ? 

A.  Nobody.     He  came  alone. 

Q.  He  hired  a  horse  ? 

A.  Yes,  sir ;  and  ordered  me  to  have  Booth's  horse  ready  by  seven  o'clock 
that  evening — this  bay  mare. 

Q.  What  time  was  it  that  he  got  there  1 

A.  About  seven  o'clock  that  evening.  It  was  raining  very  hard.  He  came 
about  three  and  ordered  them. 

Q.  When  he  came  at  seven,  what  occurred  ? 

A.  He  came  there ;  I  was  standing  in  the  gangway.  It  was  raining  very 
hard.  I  asked  him  if  he  was  going  to  the  country  such  a  night  as  that.  He 
said  yes,  he  was  going  down  to  T  B  to  a  dance  party.  I  told  him  it  would 
have  to  be  a  fine  dance  party  that  would  take  me  down  there  such  a  night  as  that. 
I  asked  him  if  he  would  go  over  to  the  Clarendon  and  get  a  drink.  He  said  he 
thought  he  had  had  enough  then.     I  thought  so  too. 

Q.  Did  Booth  come? 

A.  He  had  not  come  yet ;  I  asked  Surratt  into  the  office  to  sit  down. 

Q.  Did  he  come  in? 

A.  Yes,  sir ;  he  came  in  and  sat  there  some  few  minutes.  He  told  me  he  was 
going  down  in  the  country  to  T  B,  to  meet  a  party  and  help  them  across  the  river^ 
that  he  and  Booth  had  some  bloody  work  to  do ;  that  they  were  going  to  kC 
Abe  Lincoln,  the  d— d  old  scoundrel ;  that  he  had  ruined  Maryland  and  tb 
country.  He  said  that  if  nobody  did  it,  he  would  do  it  himself,  and  pulled  ok 
a  pistol  and  laid  it  on  the  desk. 


TRIAL   OP  JOHN   H.   8URRATT.  207 

Q.  Was  anything  said  on  this  occasion  as  to  what  he  represented  ? 

A.  He  Baid  he  represented  two  counties  in  Maryland. 

Q.  State  whether  the  rain  continued  ? 

A.  Yes,  sir ;  very  hard. 

Q.  Did  Booth  come  ? 

A.  He  came  ahout  8  o'clock. 

Q.  State  whether  there  was  any  conversation  afterward  hetween  Booth  and 
SarrattI 

A.  Mr.  Sarratt  chastised  him  for  being  so  late — for  keeping  him  waiting  so 
long. 

Q.  Will  you  explain  what  you  mean  by  the  word  ''chastise"  ? 

A.  1  think  he  was  going  to  hit  him  in  the  face  with  a  glove  or  something  of 
that  kind — ^in  joke,  of  course.  He  either  hit  at  him,  or  hit  him,  I  do  not  know 
which. 

Q.  Jokmgly  ? 

A.  Yes,  sir. 

Q.  I  simply  wanted  to  know  whether  you  used  the  word  "chastise"  in  the 
ordinary  meaning  of  it,  or  whether  you  meant  to  chide — find  fault  ? 

A.  Yes,  sir ;  to  find  fault. 

Q.  Were  you  in  Washington  on  the  day  of  assassination  ? 

A.  Yes,  sir. 

Q.  Have  you  any  distinct  memory  of  what  you  did  on  that  day  ? 

A.  Yes,  sir. 

Q.  Will  you  state  whether  you  were  riding  or  walking  t 

A.  I  was  doing  both  that  day ;  I  was  pretty  busy ;  I  was  driving  a  black  horse 
that  day  to  exercise  him. 

Q.  At  what  time  in  the  day  ? 

A.  I  Btarted  out  about  two  o'clock  in  the  afternoon. 

Q.  Which  way  did  you  go  ? 

A  I  went  down  to  the  Navy  Yard  first,  and  then  down  to  the  congressional 
burying  ground. 

Q.  When  you  came  back,  what  street  did  you  come  ? 

A.  I  went  around  by  the  Bladensburg  toll-gate,  and  came  in  H  street. 

Q.  Bid  you  come  in  late  or  early  ? 

A.  1  got  to  the  stable,  I  reckon,  at  four  o'clock,  or  a  little  after  four. 

Q-  Before  you  got  to  the  stable,  when  you  came  down  H  street,  did  you  meet 
anybody  that  attracted  your  attention  ? 

A.  I  met  a  great  many. 

Q.  Did  you  meet  any  one  in  particular  that  attracted  your  attention  ? 

A.  1  met  John  H.  Surratt. 

Q.  The  prisoner  at  the  bar  ? 

A.  Yes,  sir. 

Q.  Did  you  know  him  very  well  ? 

A.  I  have  known  him  a  good  long  while — I  think  I  ought  to  know  him. 

Q*  Was  anybody  riding  with  you  at  the  time  ? 

A.  Yes,  sir. 

Q.  Is  that  person  living  ? 

A.  Yes,  sir. 

^  How  was  Surratt  moving  when  you  met  him,  on  horseback  or  on  foot  1 

A.  He  was  on  horseback. 

^'  What  kind  of  a  horse  was  it  ? 

A.  I  did  not  notice  the  horse  much ;  I  think  it  was  a  chestnut-sorrel,  a  rather 
wkish  horse. 

Q-  Is  chestnut-sorrel  a  dark  color? 

A.  Yes,  sir. 


208  TBIAL   OF   JOHN   H.   SURRATT. 

Q.  State  whether  you  spoke  to  him } 

A.  1  spoke  to  him  and  eaid  "How  are  you,  John  V   He  nodded  to  me ;  I  do 
not  know  whether  he  spoke  or  not ;  I  was  jogging  along  at  a  pretty  good  gah. 
Q.  He  bowed  to  you,  and  you  said,  **How  are  you,  John  ?" 
A.  Yes,  sir. 

Cross-examined  by  Mr.  Bradley  : 

Q.  How  was  he  dressed  ? 

A.  He  had  on  a  kind  of  rusty  colored  coat ;  he  had  a  muffler  around  his  neck, 
something  like  a  lady's  victorine. 

Q.  What  did  he  have  on  his  head  ? 

A.  He  had  on  something  like  a  jockey  cap  crown. 

Q.  You  say  it  was  about  four  o'clock  in  the  aflternoon,  and  that  you  met  him 
down  Sixth  street  ? 

A.  No,  sir ;  on  H  street,  between  the  Printing  Office  and  the  railroad,  as  near 
as  I  can  judge. 

Q.  Were  you  examined  before  the  military  commission  ? 

A.  Yes,  sir 

Q.  Did  you  state  any  single  one  of  the  facts  you  have  stated  here  ? 

A.  No,  sir ;  I  was  not  asked ;  I  was  only  asked  about  Booth  keeping  horses 
in  my  place. 

Q.  You  have  seen  your  examination  ? 

A.  I  have  seen  it  since  it  was  printed. 

Q.  You  have  not  seen  it  lately,  have  you  ? 

A.  No,  sir,  1  have  not. 

Q.  You  say  you  are  a  veterinary  surgeon ;  did  you  use  to  train  horses  and 
break  horses  also  ? 

A.  Yes,  sir,  sometimes. 

Q.  When  you  were  before  the  military  commission  were  you  asked  about 
John  H.  Sun-att  ] 

A.  No,  sir ;  I  do  not  think  you  will  find  a  word  in  that  book  in  my  exami- 
nation about  him. 

Q.  Did  not  you,  at  that  military  commission,  say  that  John  H.  Surratt  was  at 
your  stable  in  the  January  previous,  with  Booth  ) 

A.  Yes,  sir. 

Q.  Was  not  your  attention  called  then  to  John  H.  Surratt? 

A.  Yes,  sir ;  you  asked  me  if  I  was  asked  about  him. 

Q.  No  ;  I  asked  you  if  you  stated  any  single  fact  before  that  military  com- 
mission that  you  stated  to-day  ? 

A.  Then  I  misunderstood  you.  I  thought  it  was  whether  they  asked  me 
any  question  about  Surratt.     They  just  called  me  to  ask  about  Booth's  horses. 

Q.  Then  you  did  state  that  John  H.  Surratt  came  there  ? 

A.  Yes  ;  I  told  them  too  about  Arnold's  .buying  a  horse. 

Q.  Have  you  told  to-day  about  Arnold  buying  a  horse  ? 

A.  I  have  not  been  asked  it. 

Q.  I  ask  you  if  you  stated  anything  about  John  H.  Surratt  there  that  yoa 
have  stated  to-day  ? 

A.  No,  sir,  only  in  regard  to  hiring  a  horse. 

Q.  Were  you  not  examined  by  an  officer  of  the  government  before  you  were 
called  to  testify  as  a  witness  at  the  arsenal  ? 

A.  Colonel  Burnett  called  me  out  into  the  witness  room.  I  told  Mr.  CottWg' 
ham,  the  man  that  summoned  me,  that  I  would  give  him  $5  to  get  me  off;  v^ 
I  had  some  horses  to  ship  at  Georgetown.  Mr.  Cottingham  went  and  fetched 
Colonel  Burnett  out.  He  asked  what  I  knew.  I  was  going  on  to  state. 
He  said  he  did  not  want  to  hear  about  that ;  that  I  could  come  the  next  day 


T£IAL  OF  JOHN   H.   SUBBATT.  209 

I  came,  and  told  about  Surratt's  hiring  a  horse.     Thej  sent  me   to  17th  street 
to  identi^  the  horse  Booth  kept  with  me. 

Q.  Did  not  you  know  that  the  great  point  of  inquiry  was,  who  was  concerned 
in  the  murder  of  the  President ;  and  did  not  you  know  that  John  H.  Surratt 
-vf&s  charged  as  being  one  of  the  parties  ? 
A.  I  did. 

Q.  Why  did  you  not  tell  what  you  have  told  the  jury  here  to-day  ] 
A.  I  was  not  asked  about  it. 

Q.  You  were  asked  what  you  knew  about  Booth  and  Surratt  ? 
A.  No,  sir ;  1  was  not  asked  about  Surratt.     I  told  about  Surratt's  hiring  the 
"horse  on  my  own  motion. 
Q.  Why  did  you  tell  that  ? 

A.  I  do  not  know  ;  they  asked  me  about  horses  and  I  told  them  about  Sur- 
ratt. They  may  probably  have  asked  me  if  Surratt  did  not  hire  a  horse  from 
me.   I  do  not  know. 

Q.  You  stated  that  you  were  not  asked  about  Surratt  at  that  time,  but  what 
yoa  stated  about  him  was  of  your  own  accord  ? 
A.  I  might ;  I  do  not  know  whether  I  was  or  not. 
Q.  Why  did  not  you  tell  at  that  time  all  you  have  told  the  jury  to-day  ? 
A.  I  was  very  glad  to  get  off  the  stand  and  get  away  from  the  place. 
Q.  Yet  you  did  tell  them  about  Surratt  being  at  your  stable  with  Booth  ? 
A.  Yes,  I  told  them.     I  do  not  think  I  was  asked  it. 
Q.  I  ask  you  again  whether  you  told  them  anything  at  all  of  what  you  have 
Btated  here  to-day  ? 

A.  I  did  not  tell  them  anything  about  the  conversation  with  Surratt  I  have 
stated. 

Q-  Did  you  tell  them  you  saw  John  H.  Surratt  in  this'  city  on  the  afternoon 
of"  the  14th,  the  dav  of  the  murder  ] 

A.  Ko,  sir,  I  did  not. 

Q.  Did  not  you  know  it  was  of  importance  to  find  out  whether  John  H.  Sur- 
ratt was  concerned  in  the  murder  or  not  ? 

A.  Yes,  sir. 

Q-  Then  why  did  you  not  tell  them  what  you  knew  ? 

A.  I  was  well  acquainted  with  Surratt  and  inclined  to  shield  him. 

Q-  Yet  you  told  them  that  he  was  with  Booth  at  your  stable ;  that  he  was 
toere  Using  Booth's  horse  ;  and  you  told  them  that  without  being  asked  ? 

A.  1  told  them  about  hiring  a  horse  to  go  down  to  the  dance  party. 

Q  You  told  them  about  Booth's  going,  and  about  that  little  passage  between 
fiooth  and  Surratt  ? 

A'  No,  sir. 

Q'  Did  you  tell  them  about  Surratt  being  tight  that  night ;  that  he  had  too 
"»Qch  on  board  already  ? 

A.  No,  sir ;  I  was  scarcely  on  the  stand  five  minutes,  or  two  minutes. 
.  H'  In  that  two  minutes  or  five  minutes  you  told  them  these  things  without 
^^"ig  asked? 

A.  I  told  them  all  they  asked  me. 

Q-  But  they  did  not  ask  you  about  Surratt  bemg  there,  and  yet  you  told 

A.  I  think  they  asked  if  anybody  used  Booth's  horses  besides  himself,  and 

tii  ^^^  ^^^^  ^c  let  Surratt  use  his  horses  ;  and  I  think  they  might  have 

pea  whether  Surratt  hired  horses.     I  think  it  probable  they  did,  but  I  do  not 

Q«  Then  you  think  it  is  possible  that  they  might  have  asked  you  about  Sur- 

A.  I  think  so  ;  I  do  not  know. 


210  TRIAL  OP  JOHN   H.   8URRATT. 

Q.  You  think  you  did  not  volunteer  to  state  it  of  your  ovirn  accord! 

A.  I  do  not  know  whether  I  did  or  not,  it  is  so  long  ago. 

Q.  Did  not  you  tell  us  at  first  that  you  were  not  asked  questions,  but  that  yoi 
told  all  this  without  being  asked  ? 

A.  I  told  you  at  first  that  I  did  not  tell  them  anything  about  the  conversa 
tion  between  Mrs.  Surratt  and  myself. 

Q.  Did  you  ever  take  a  horse  from  me  to  break  1 

A.  Yes,  sir. 

Q.  Did  you  sell  that  horse  while  in  your  custody  ? 

A.  Yes,  sir. 

Q.  Did  you  ever  pay  me  the  money  for  it  ? 

A.  No,  sir. 

Q.  You  took  him  and  sold  him  without  my  authority  ? 

A.  No,  sir. 

Q.  You  had  my  authority  for  it  ? 

A.  Yes,  sir. 

Q.  You  swear  to  that  ? 

A.  Yes,  sir. 

(Examination  objected  to  by  district  attorney.) 

Q.  Are  you  the  same  Dr.  (jleaver  indicted,  tried,  and  convicted  in  this  tern  1 

(Object^  to  by  district  attorney.) 

The  Court.  The  question  may  be  asked;  it  will  be  for  the  witness  to  say 
whether  he  will  answer  it 

Q.  I  ask  whether  you  are  the  same  Dr.  Cleaver  who  was  indicted,  tried,  an^ 
convicted  for  rape  upon  a  poor  little  girl  in  this  city,  and  whether  you  have  nol 
obtained  an  order  for  a  new  trial  ? 

Witness.  I  cannot  answer  that  question. 

The  Court  suggested  that  it  would  be  better  to  bring  in  the  record  of  hii 
conviction  if  such  is  the  fact. 

Mr.  Bradley  said  he  had  the  right  to  ask  the  question,  and  the  witness  woaU 
answer  or  not,  as  he  pleased. 

The  District  Attorney  denied  his  right  to  ask  the  question. 

Q.  Where  have  you  been  for  the  last  month  or  two  I 

A.  In  the  city. 

Q.  Where  in  the  city  ? 

A.  I  cannot  tell  you  that. 

Mr.  Bradley.  Will  your  honor  inform  the  witness  whether  he  is  obliged  t< 
answer  the  question  or  not  ?     He  declines  to  answer  it. 

Witness.  I  stated  that  I  had  been  in  the  city. 

Q.  Where  in  the  city  ? 

A.  In  different  places. 

Q.  In  what  different  places  ? 

A.  I  have  been  in  Philadelphia. 

Q.  Then  you  have  not  been  in  this  city  ? 

A.  Yes,  I  have  been  in  this  city. 

Q.  Where  have  you  been  for  the  last  three  weeks  ? 

A.  I  cannot  answer  that  question. 

Mr.  Bradley.  I  hope  the  court  will  instruct  the  witness  that  he  mustani^*' 
the  question. 

The  Court.  The  question  may  be  put,  and  if  the  witness  does  not  choose  to 
answer  it  he  may  decline  to  answer  it.  . 

Mr.  Bradley.  Can  he  decline  to  answer  it  unless  he  states  that  it  would  tena 
to  criminate  him  I 

The  Court.  Criminate  or  degrade  him. 


J 


TRIAL  OF  JOHN  H.  SUBRATT.  211 

After  a  etatement  made  by  the  witness  privately,  the  court  stated  he  was  sat- 
sfied  the  witness  had  a  right  to  decline  to  answer  the  question. 

Q.  Have  you  recently  seen  a  man  by  the  name  of  Sanford  Conover,  other- 
vise  known  as  Dunham  ? 
A.  Yes,  sir. 

Q.  Have  you  been  in  daily  intercourse  with  him  ? 
A.  Sometimes  I  have. 
Q.  In  this  city  ] 
A.  Yes,  sir. 

Q.  Have  you  talked  with  him  about  this  case  ? 
A.  Yes,  sir ;  I  told  him  all  I  knew  about  it  two  or  three  months  ago. 

Q.  Did  he  write  down  what  you  told  him  ? 

A.  No,  sir ;  not  that  I  know  of— not  in  my  presence.     He  is  a  man  I  very 
seldom  spoke  to. 

Q  Yet  you  were  in  daily  intercourse  with  him,  and  told  him  all  about  this 
case] 

A.  I  may  have  been  in  his  company. 

Q.  How  came  you  to  tell  him  about  this  matter  ? 

A.  We  were  talking  about  Surratt*s  trial,  and  I  got  to  telling  him  about  Sur- 
ratt's  hiring  a  horse  of  me. 

Q.  Did  you  tell  Sanford  Conover  the  same  things  you  have  told  in  court 
to^aj] 

A.  Pretty  much  the  same. 
By  Mr.  Mbrrick  : 

Q-  Where  was  it  you  saw  Sanford  Conover  1 

A.  I  decline  to  state  where  it  was.    I  believe  it  was  on  4th  street  somewhere. 

Q.  Was  it  on  the  comer  of  the  street  ? 

A.  No,  sir. 

Q-  Near  the  comer  ? 

A.  Yea,  sir. 

Q  Juat  round  the  comer  from  G  street,  on  the  left-hand  side  of  Fourth  street 
"you go  up? 

A.  Yea,  sir. 

Q-  la  that  where  you  have  been  staying  for  the  last  two  or  three  weeks  ? 

^-  PiKRRBPONT.  I  ask  the  court  to  instruct  the  witness  as  to  his  right  to 
anawer. 

The  Court.  I  have  done  so. 
By  Mr.  Bradley: 

Q-  I  want  to  know  whether  Sanford  Conover  is  the  first  man  to  whom  you 
^Id  the  things  you  have  stated  in  court  to-day. 

^-  No,  sir. 

Q- Who  else? 

A.  A  youne  man  who  was  keeping  stable  for  me  by  the  name  of  Charley 
^^.  I  told  him  of  the  conversation  they  had  after  they  went  down  the 
country  together. 

Q  Did  you  tell  Charley  Lewis  you  saw  Surratt  in  this  city  on  the  14th  of 
^Pril,  1885  ? 

^  I  do  not  know  whether  I  did  or  not. 

Q*  You  do  not  know  I 

A.  No ;  I  saw  a  great  many  people  in  1865  that  I  did  not  tell  him  about. 

x>  Are  there  a  great  many  people  in  the  city  of  Washington  that  you  know 
**^ything  about,  cWged  with  complicity  in  this  murder  ? 

^  No,  sir ;  not  that  1  know  of. 

H*  You  do  not  know  where  Charley  Lewis  is  t 


212  TRIAL   OP  JOHN  H.   8URBATT. 

A.  No,  sir. 

Q.  How  long  is  it  since  you  have  seen  bim  ? 

A.  About  a  year  and  a  half. 

Q.  Wbere  did  be  belong  ? 

A.  In  Connecticut. 

Q.  Do  you  know  wbere  be  went  wben  be  left  bere  ? 

A,  No,  sir  ;  he  went  away  in  a  hurry  from  me. 

Q.  How  long  after  this  conspiracy  trial  did  be  go  away  t 

A.  Three  or  four  months,  or  four  or  five  months ;  I  cannot  state  exactly  the 
time. 

Q.  I  want  to  know  the  first  person  to  whom  you  told  that  you  saw  John  H. 
Surratt  on  the  14tb  of  April. 

A.  I  may  have  told  a  great  many — I  cannot  recollect. 

Q.  Do  you  know  whether  you  told  it  to  anybody  before  you  told  it  to  San- 
ford  Oonover  ? 

A.  No,  sir. 

Q.  Were  you  at  large  in  the  city  wben  Surratt  was  arrested  ? 

A.  No,  sir;  I  was  in  the  city. 

Q.  Have  you  not  been  examined  in  a  civil  suit  in  this  city  since  John  H. 
Surratt  was  arrested  ? 

A.  No ;  it  was  a  few  days  before. 

Q.  Before  he  was  brought  here  ? 

A.  Yes,  sir. 

Q.  Are  you  quite  sure  about  that? 

A.  I  know  it,  sir. 

Q.  Up  to  that  time,  bad  you  told  anybody  of  this  thing  1 

A.  I  might ;  I  cannot  say. 

Q.  Can  you  not  tell  wben  you  first  spoke  of  a  fact  so  important  to  the  life  ox 
a  man  as  this  ? 

A.  I  did  not  think  it  important  at  the  time  I  met  bim. 

Q.  And  you  carried  the  secret  for  how  long  a  time  ? 

A.  I  did  not  think  it  a  secret  at  the  time  I  met  him. 

Q.  I  do  not  speak  of  the  time  you  met  bim.  During  the  conspiracy  trials 
you  knew  it  was  an  important  fact  to  ascertain  whether  he  was  in  the  city  oc^ 
that  day  or  not  ? 

A.  Yes,  sir;  and  I  should  not  have  told  it  now  if  it  had  not  been  for  Oonoyor- 
He  soon  told  somebody,  and  the  first  thing  I  knew,  somebody  came  to  the  jail- 
to  see  me.     I  got  very  mad  at  Conover.     I  told  bim  I  did  not  want  to  ansve^ 
the  question. 

Q.  Did  you  say  it  was  in  the  jail  ? 

A.  Yes,  sir. 

Q.  Who  came  to  see  you? 

A.  I  think  it  was  Mr.  Ashley,  a  stoutish  gentleman.  I  asked  bim,  and  be 
told  me  bow  be  came  to  know  of  it.  I  would  not  answer  the  question  until  be 
told  me  who  had  told  bim  of  it.  I  knew  I  bad  not  said  it  to  anybody  but  Con- 
over.     Wben  I  went  back  I  never  spoke  to  him  for  six  or  seven  days. 

Q.  Then  you  had  a  talk  with  Mr.  Ashley  ? 

A.  Yes,  sir. 

Q.  Did  you  tell  him  about  all  these  things  7 

A.  No,  sir. 

Q.  What  else  did  you  fail  to  tell  him  ? 

A.  I  did  not  tell  him  a  great  many  things  ;  I  never  told  him  of  the  sale  « 
Booth's  horse  to  Arnold. 

Q.  Did  Mr.  Ashley  write  down  what  you  said  1 

A.  No,  sir. 


TRIAL  OP  JOHN   H.   8URRATT.  213 

2.  Did  he  have  paper  when  he  came  in  ] 

i.  Not  that  1  know  of;  I  never  saw  any. 

}.  Was  he  in  Sanford  Conover's  company  ? 

i.  No,  sir. 

J.  Did  you  not  see  him  in  SanPord  Conover's  company  at  other  times  ? 

L  I  never  saw  him  in  his  company  in  my  life. 

By  Mr.  Pierrepont. 
2.  You  have  heen  asked  about  the  sale  of  a  horse  to  Arnold.    What  was 

a 

tfr.  Merrick.  We  have  not  asked  that. 

dr.  Pierrepont.  It  came  out  in  some  way  in  cross-examination, 
rhe  court  ruled  that  the  question  might  be  asked. 

k.  Booth  came  down  to  the  stable  on  the  27th  or  28th  of  January  and  paid 
livery ;  I  think  to  the  26th.  Then  he  came  about  the  27th  or  28th  and 
A  his  livery  up  to  February  1,  and  Sam.  Arnold  in  company  with  him.  He 
m  told  me,  in  Arnold's  presence,  that  he  had  sold  the  horse  to  Arnold,  and 
It  Arnold  was  to  pay  the  livery  from  that  time  on. 
Q.  Now,  about  Booth's  order  you  spoke  about,  what  did  that  mean  ? 
(Question  objected  to  as  not  relating  to  what  was  brought  out  on  the  examination 
chief.    Objection  sustained.) 

By  Mr.  Bradley  : 
Q.  Who  was  the  Mr.  Ashley  who  called  on  you  at  the  jail  ? 
A.  I  don't  know  him  only  by  that  name.     I  believe  he  is  a  member  of  Con- 
TW8.    I  never  saw  him  before  in  my  life. 
Q.  What  sort  of  a  looking  man  is  he  ? 
A.  A  stoutish  man. 

Q.  Did  you  understand  he  was  a  member  of  Congress  ? 
A.  Yea,  sir ;  he  told  me  who  he  was. 

Q.  Have  you  received  any  offer  of  favor  or  reward  for  the  testimony  you  have 
iven  in  this  case  ? 
A.  I  have  not,  from  anybody. 
Q.  You  are  quite  sure  of  that  ? 
A.  Yes,  sir ;  I  have  not,  from  anybody. 

By  the  District  Attorney  : 
Q.  And  we  understand  you  to  say  you  had  no  idea  of  revealing  this  ? 
A.  I  did  not ;  I  told  it  to  Conover  confidentially. 

Mr.  Eddy  Martin  sworn  and  examined. 

By  Mr.  Pierrepont: 
Q.  State  your  residence  and  occupation. 
A.  I  reside  in  New  York.     I  am  a  commercial  broker. 

Q.  In  the  year  1865,  did  you  go  down  to  Port  Tobacco  from  the  city  of 
rashington  ? 
A.  Yes,  sir. 

Q.  Now  state  briefly  what  occurred  there,  and  what  you  saw  connected  di- 
ctly  with  the  prisoner  at  the  bar. 

A.  I  went  to  Richmond,  and  I  will  state  the  circumstances  under  which  I 
?Dt,  if  you  will  permit  me.  In  the  fall  of  1864  a  gentleman  went  to  Rich- 
>nd  and  consulted  with  the  confederate  authorities  there  in  regard  to  the  dis- 
?i'tion  of  the  entire  cotton  crop  of  the  south.  On  his  return,  in  company  with 
ne  persons,  personal  and  political  friends  of  Mr.  Lincoln,  he  called  to  see  Mr. 
icoln,  and  had  a  consultation  with  him  in  reference  to  it. 


214  TRIAL   OP   JOHN   H    SURRATT, 

Q.  Were  you  there  ? 

A.  No,  sir ;  I  have  seen  the  affidavits  of  the  parties. 

Q.  Then  you  need  not  go  into  anything  in  regard  to  that — growing  out  of 
that.     You  went  down  there  ? 

A.  Yes,  sir ;  and  it  will  take  me  but  a  moment  to  state  the  facts  and  circum- 
stances under  which  I  went.  I  think  it  is  my  right  to  do  so.  I  think  you 
promised  it  to  me. 

Mr.  PiBRRBPONT.  I  have  no  objection,  if  it  is  legitimate. 

Mr.  Bradley.  There  is  no  objection  on  the  part  of  the  defence. 

Witness.  Mr.  Lincoln  expressed  a  desire  to  see  this  thing  consummated. 
He  suggested  a  certain  course  to  be  pursued,  in  which  our  government  should 
not  be  directly  connected  with  it.     The  confederate  government  wanted  to  treat 
directly  with  Mr.  Lincoln.     He  objected  to  that ;  he  said  he  would  not  recog* 
nize  them  and  he  would  not  treat  with  them,  but  that  if  these  gentlemen,  or  any 
association  of  individuals,  could  ent«r  into  arrangements  to  purchase  the  cotton 
and  tobacco  in  the  south,  he  would  guarantee  them  the  protection  of  the  gov- 
ernment and  afford  them  every  facility  for  carrying  out  that  arrangement.    At 
the  close  of  the  interview  these  gentlemen  asked  for  a  pass  to  return  south,  and 
consummate  the  affair.     Mr.  Lincoln  said  he  would  rather  not  give  a  pass ;  bat 
that  they  had  been  there  once,  and  he  guessed  they  could  go  again.     In  the 
month  of  December  these  parties  came  and  laid  the  facts  before  me ;  asked  me 
to  take  hold  of  the  business,  and  prosecute  it  to  its  consummation.     Afler  con- 
sideration, I  agreed  to  do  so,  believing  I  acted  with  the  tacit  consent  of  the 
President,  if  not  his  full  approval. 

Mr.  PiBRRBPONT.  And  the  reason  you  asked  to  make  this  statement  was  in 
order  to  show  that  you  were  there  legitimately  ? 

A.  That  is  precisely  the  reason.     By  the  time  I  got  there 

Mr.  PiBRRBPONT.  That  is  sufficient  to  show  your  reason.  Now  please  state 
what  occurred. 

WiTNBSS.  I  think  I  have  a  right  to  complete  this  explanation.  Judge  Piarre- 
pont  promised  me  I  should. 

The  Court.  As  it  will  probably  take  less  time  for  the  witness  to  complete 
his  statement  than  to  argue  the  question,  I  think  he  had  better  be  allowed  to 
go  on. 

WiTNBSS.  I  went  to  Richmond ;  but  so  long  a  time  had  elapsed  afler  the 
original  proposition,  that  they  declined  to  carry  it  out  as  first  proposed,  but  ex- 
pressed a  desire  that  I  should  purchase  cotton  freely,  which  I  did  to  the  extent 
of  about  86,000,000,  and  obtained  the  refusal  of  about  $15,000,000  worth  more. 
I  came  back  to  Washington,  and  reported  promptly  what  I  had  done.  There 
was  nothing  criminal  or  irregular  in  it.  It  was  done  with  the  tacit  consent  of  the 
President. 

Q.  And  that  was  the  reason  of  your  going  1 

A.  Yes,  sir. 

Q.  Now  go  on  and  state  what  relates  to  this  subject. 

A.  While  in  Port  Tobacco,  I  remained  for  ten  days,  in  order  to  get  an  oppor- 
tunity to  cross  the  river.  I  employed  a  man  by  the  name  of  Andrew  Atzeiwt» 
and  paid  him  to  make  some  arrangements  for  me  to  cross  the  river. 

Q.  Was  that  his  full  name  1 

A.  I  do  not  know ;  he  went  by  that  name. 

Q.  Was  his  name  George  A.  ] 

A.  I  presume  so ;  he  went  by  the  name  of  Andrew. 

Q.  There  was  no  doubt  about  the  other  name  being  Atzerodt  ? 

A.  I  think  not.  I  heard  his  name,  and  recollect  asking  him  once  if  it  vtf  * 
Russian  name.     He  tried  to  make  arrangements  for  me  to  cross,  and  went  down 


TRIAL   OF  JOHN   H.   8UBRATT.  215 

the  river  eeveral  times.     I  paid  him  for  hi8  trouble,  and  finally  abandoned  the 
idea  and  left  there.     I  did  not  cross  there  at  all. 

Q.  What  time  was  that  ? 

A.  About  the  10th  of  January,  1865;  from  the  7th  to  the  15th. 

Q.  Who  else  did  you  see  there  connected  with  this  conspiracy  ? 

A.  I  saw  Surratt  there  on  one  occasion. 

Q.  Tell  what  you  know  about  it ;  what  was  said  or  done. 

A.  I  had  no  particular  conversation  with  him.  I  was  introduced  to  him.  He 
did  not  refer  to  his  businees,  and  I  do  not  think  I  did  to  mine.  On  one  evening 
after  dark  a  man  told  me  that  a  party  was  just  about  to  cross  over.  1  said  I 
would  like  to  be  introduced  to  him.  He  said  he  would  do  so.  In  probably 
fifteen  or  twenty  minutes  he  came  in  and  said  he  was  mistaken ;  that  they  were 
not  going  to  cross.  During  the  evening  I  was  introdnced  to  Surratt.  No  par- 
ticular conversation  passed  between  us.  I  may  have  told  him  I  was  going  to 
cross  the  river.  I  think  I  did.  I  remained  that  night.  The  next  day  when 
be  came  in  to  supper  he  had  on  his  leggins.  I  asked  him  if  he  was  going.  He 
said  he  was  going  back  to  Washington  ;  that  he  was  employed  in  Adams's  ex- 
press office ;  that  he  had  three  daysMeave  of  absence  j  that  his  time  was  nearly 
expired,  and  that  it  was  necessary  for  him  to  start  back  that  night. 

Q.  State  whether  you  saw  he  and  Atzerodt  speak  together. 

A.  I  am  not  positive  whether  I  saw  them  speak  at  all  with  each  other. 

Q.  Did  you  see  them  after  that  day  ? 

A  I  did  not  see  him  after  this  conversation  at  the  supper  table,  and  have  not 
seen  him  since  till  I  saw  him  here. 

Q.  Did  you  see  Atzerodt  afterwards  ? 

A.  Yes,  sir.  I  remained  two  or  three  days  and  tried  to  get  across.  I  saw 
wm  there  all  the  time  I  was  there. 

Q.  Did  you  see  him  on  the  other  side  ? 

A.  Never. 

Q.  Did  you  see  either  of  them  on  the  other  side  ? 

A.  I  never  saw  or  heard  of  either  of  them  on  the  other  side. 

Q.  Did  you  see  either  of  them  at  any  other  place,  at  any  other  time,  that  you 
'finiember  of  ? 

A.  I  did  not. 

Q.  You  did  not  know  Payne  1 
.A.  No,  sir. 

Q.  Did  you  know  Herold  ? 

A.  No,  sir,  I  did  not. 

Q.  You  had  other  conversation  with  Atzerodt,  did  you  ? 

A.  I  did  the  night  Surratt  left  there.  I  was  losing  confidence  in  Atzerodt. 
1  thought,  although  I  had  been  paying  him  tolerably  liberally,  that  he  had  been 
throwing  off  on  me.  I  staid  up  pretty  late  that  night.  He  came  to  the  hotel 
*hout  11  o'clock.  I  accused  him  of  intending  to  cross  over  that  night  with  other 
P^ies ;  told  him  I  had  been  paying  him  all  that  he  asked,  and  that  I  must 
^88  hy  the  first  boat.  He  denied  that  anybody  was  going  to  cross  that  night. 
1  reiterated  the  charge  I  had  made  of  duplicity  upon  his  part.  He  then  made 
^is  explanation  :  He  said  no  one  was  going  to  cross  that  night,  but  on 
^ednesday  night  a  large  party  would  cross  of  ten  or  twelve  persons ;  that  he 

had  been  engaged  that  day  in  buying  boats ;  that  they  were  going  to  have 

j^layg  of  horses*  on  the  road  between  Port  Tobacco  and  Washington.     Said  I, 

"What  does  this  mean  ?  "     He  said  he  could  not  tell.     Alter  a  moment  I  said 

^  supposed  that  confederate  officers  were  to  escape  from  prison,  and  that  he  had 

^^  arrangements  to  cross  them  over  into  Virginia.     He  said  ••  Yes,  and  I  am 

^H  to  get  well  paid  for  it." 
Q-  Wbeu  you  asked  him  first  what  it  was,  he  did  iiot  tell  you  ? 


216  TRIAL  or  JOHN  H.  8URRATT. 

A.  No ;  he  said  he  did  not  know,  or  something. 

Q.  But  when  you  made  this  suggestion  he  agreed  to  it  ? 

A.  Yes ;  he  assented  to  it  in  a  moment. 

Brooks  Stabler  sworn  and  examined. 
By  Mr.  Pierrepont  : 

Q.  What  was  your  occupation  from  the  first  day  of  January  until  the  fira 
day  of  June,  1865 1 

A.  I  was  in  a  livery  stable ;  taking  charge  of  a  livfer^  stable. 

Q.  Whose  stable  was  it  ? 

A.  John  G.  Howard,  on  G  street,  between  6th  and  7th. 

Q.  Do  you  remember  the  number  ? 

A.  I  do  not. 

Q.  Did  you  know  John  Wilkes  Booth  ? 

A.  I  did. 

Q.  Did  you  know  John  H.  Surratt  ? 

A.  I  did. 

Q.  Did  you  know  George  A.  Atzerodt  T 

A.  I  did. 

Q.  Did  you  see  them  at  your  stable  1 

A.  Frequently. 

Q.  Did  you  see  them  all  together  there  ? 

A.  I  have  seen  them  together,  and  separately. 

Q.  What  did  you  see  them  doing  ? 

A.  They  were  talking,  sometimes. 

Q.  Talking  together? 

A.  Yes,  sir. 

Q.  State  when  you  first  saw  John  Wilkes  Booth  at  your  stable,  as  near « 
you  can  remember. 

A.  I  cannot  remember  exactly  the  time ;  it  was  about  the  time  Surratt  entered 
his  horses  at  that  stable  in  my  care. 

Q.  When  did  Surratt  put  his  horses  at  that  stable  in  your  care  ? 

A.  That,  I  think,  is  stated  in  my  testimony  on  the  other  trial ;  I  do  not  re- 
collect it  now. 

Q.  Can  you  state  whether  it  was  about  February,  186/5  ? 

A.  It  was  along  about  that  period. 

Q.  In  what  manner  did  Surratt  put  his  horses  in  your  charge  ? 

A.  He  left  them  there  to  be  taken  care  of — to  be  fed  and  watered. 

Q.  How  many  were  there  ? 

A.  Two. 

Q.  Will  you  describe  these  two  horses  ? 

A    They  were  both  bay  horses.     One  was  an  ordinary  horse ;  the  other  was 
a  rather  fine  horse — saddle  horses. 

Q.  Were  both  horses,  or  one  a  mare  ? 

A.  Both  horses. 

Q.  What  was  the  direction  he  gave  you  about  them  ? 

A.  His  direction  was  that  he  wanted  them  taken  care  of  in  the  best  manner! 
could. 

Q.  In  reference  to  their  use,  what  did  he  direct  ? 

A.  That  they  were  not  to  be  used  except  by  his  order. 

Q.  Did  he  give  you  any  order  about  their  use  ? 

A.  He  gave  me  an  order  on  one  occasion  for  Booth  to  use  them  ? 

Q.  What  did  he  say  in  giving  that  order  ? 

A.  His  directions  were  that  Booth  and  no  one  else  was  to  have  his  horses,  b» 
that  Booth  could  get  them  at  any  time. 


TRIAL   OF  JOHN  H.   SURRATT.  217 

Q.  Booth  could  get  either  horse  at  any  time ;  he  did  not  mention  any  one  1 

A.  I  do  not  recollect  that  he  did ;  Booth  usually  got  one  horse. 

Q.  Which  one  ? 

A.  The  better  one. 

Q.  When  these  men  came,  did  they  come  together  or  separately  ? 

A.  Sometimes  two  of  them  would  come,  and  I  believe  all  three  of  them  have 
come  together. 

Q.  How  was  it  generally,  did  they  all  come  together  or  separately  1 

A.  There  were  generally  two  of  them. 

Q.  How  often  in  the  course  of  a  day  were  they  there  sometimes  ? 

A.  Two  or  three  times  a  day  sometimes. 

Q.  Did  yon  see  Atzerodt  ride  out  with  Surratt  on  any  occasion  ? 

A.  I  did  on  one  occasion. 

Q.  Did  you  have  any  written  order  from  Surratt. 

A.  I  had  one. 

Q.  Have  you  it  with  you  ? 

A.  I  think  I  have ;  (paper  produced.) 

Q.  Do  you  know  who  brought  this  note  t 

A.  I  did  not  know  the  gentleman 

Q.  it  was  brought  by  a  gentleman  was  iti 

A.  I  never  saw  him  before  or  since. 

Q.  You  know  the  handwriting  ? 

A.  It  is  Surratt's  handwriting. 

Mr.  PiERREPONT  read  the  note  as  follows  : 

«*  March  26,  1865. 
"Mr.  Brooks  :  As  business  will  detain  me  for  a  few  days  in  the  country  I 
thought  I  would  send  your  team  back.     Mr.  Bearer  will  deliver  in  safety  and 

CJ  9ie  hire  on  it.  If  Mr.  Booth,  my  friend,  should  want  my  horses,  let  him 
^e  them,  but  no  one  else.  If  you  should  want  any  money  on  them,  he  will  let 
you  have  it.  I  should  have  liked  to  have  kept  the  team  for  several  days,  but 
H  is  too  expensive,  especially  as  I  have  women  on  the  brain  and  may  be  away 
^w  a  week  or  so. 

"  Yours,  respectfully, 

"J.  HARRISON  SURRATT." 

Q-  Will  you  state  what  team  this  alludes  to  ? 
A.  The  team  I  hired  to  him. 
Q.  What  team  was  it  ? 
A.  A  horge  and  buggy. 

Q-  This  was  on  the  26th  of  March ;  how  long  prior  to  that  did  you  let  him 
we  the  team  ? 
A.  The  day  before,  perhaps  ;  I  could  tell  by  reference  to  my  books. 
Q.  Did  he  tell  you  where  he  was  going  with  it  ?  and  if  so,  where  ? 
A.  I  think  not ;  I  do  not  think  I  knew  where  he  was  going  then. 
Q-  Who  did  you  see  Surratt  ride  out  with  from  your  stable  with  any  of  the 

A.  I  have  seen  him  ride  out  with  Booth,  and  I  have  seen  him  ride  out  with 
Atzerodt. 
Q-  Did  you  receive  any  other  note  from  John  H.  Surratt  t 
A.  Not  that  I  recollect  of  now. 
Q'  I  allude  to  the  one  produced  on  a  former  trial  ? 
A.  I  may  have  received  several. 

\'  Do  you  recollect  Mrs.  Surratt  sending  a  note  to  you  ? 
^  Sending  an  order  for  a  horse  and  buggy. 
\'  Who  did  you  see  ride  out  on  that  order  sent  by  Mrs.  Surratt  ? 


218  TRIAL  OF  JOHN  H.   SUBRATT. 

Mr.  Merrick.  We  do  not  know  that  there  is  any  such  note. 

Mr.  PiBRRBPONT.  1  eupposed  the  note  was  here  ;  I  believe  it  is  attached 
the  record  of  the  military  commission.  I  will  therefore  waive  that  quebti 
until  it  is  here.    ' 

Q.  Please  state  whether  in  the  spring  of  1865,  or  in  April,  1865,  you  had  ai 
conversation  with  Atzerodt  about  Surratt  ? 

Mr.  Bradley.  As  that  conversation,  I  presume,  is  the  same  as  that  stated 
the  book  containing  the  assassination  trial,  I  will  ask  the  court  to  examine 
and  determine  whether  it  can  properly  be  admitted  in  evidence  or  not. 

Mr.  PiERRBPONT.  I  suppose  the  statement  there  is  substantially  what  the  w 
ness  will  say. 

Pending  the  decision  of  the  question,  the  court  took  a  recess  until  to-morrc 
at  10  a.  m. 

Friday,  June  21,  1867. 
The  Court  met  at  10  a.  m. 

Mr.  Merrick  presented  to  the  court  affidavits  of  the  prisoner,  asking  that  tl 
witnesses  Carroll  T.  Hobart,  Charles  H.  Blinn,  and  Sergeant  Joseph  M.  Dye  1 
recalled. 

After  examining  the  affidavits,  Judge  Fisher  said  that  he  had  carefully  note 
their  contents,  and  had  also  considered  the  arguments  submitted  by  counsel  yei 
terday.  His  views  were  that  the  custom  which  had  always  prevailed  was  m 
rect ;  that  a  witness  should  consider  himself  discharged  afber  examinatioo 
unless  told  to  remain.     lie  thought  it  better  to  pursue  the  common  practice. 

Mr.  Merrick  desired  to  know  if  the  witness  could  be  cross  examined  if  bron^ 
here  by  the  defence. 

The  Court  said  that  he  could  be  examined  as  a  witness  for  the  defence. 

Mr.  Merrick  said  he  underptood  counsel  on  the  other  side  to  agree  that  if  th 
witnesses  were  here  they  could  be  cross  examined. 

The  Court  said  that  that  was  a  subject  for  agreement  between  counsel. 

Mr.  Merrick  inquired  if  he  understood  the  court  right,  that  the  bail  bondo 
Dye  could  be  offered  in  evidence. 

The  Court  said  that  that  was  a  subject  for  future  consideration.  He  hn 
only  remarked  that  that  was  the  way  to  prove  it. 

Edward  L.  Smoot,  recalled.    Examination  resumed. 
By  the  District  Attorney  : 

Q.  Will  you  state  if  you  made  any  erroneous  statement,  or  whether  yo 
made  any  mistake  in  your  testimony  of  yesterday,  which  you  desire  to  correct 

A.  I  have  been  told  since  I  got  off  the  stand  yesterday  that  I  was  mistake 
as  to  the  gentleman  who  examined  me  up  at  Winder's  building.  I  said  yesterdaj 
in  reply  to  a  question  put  by  Mr.  Merrick,  that  I  was  there  examined  by  tw 
gentlemen — one  a  young  gentleman  and  the  other  an  old  one.  He  then  aske 
me  their  names.  I  told  him  I  did  not  know  the  name  of  either,  but  that  I  hem 
after  I  left  the  room  that  the  elderly  gentleman  was  Judge  Holt.  Some  of  tin 
witnesses  who  went  up  there  with  me  told  me  that  the  older  gentleman  of  ik 
two  was  Judge  Holt.     I  never  saw  Judge  Holt  in  my  life  to  know  him. 

By  Mr.  Merrick  : 

Q.  Just  describe  the  gentleman  who  examined  you. 

A.  The  gentleman  was  sitting  down  at  the  time,  and  did  not  get  up  at  vL 
I  was  questioned  first  by  the  young  gentleman.  I  saw  him  this  moroing»  lod 
he  tells  me  his  name  is  Colonel  Barr.     They  both  questioned  me. 

Q.  Describe  the  old  gentleman. 


i 


TBIAL   OF  JOHN  H.  8URRATT.  219 

Mr.  PiBRRBPONT.  I  Bubmit  to  your  honor  whether  that  is  a  proper  question. 
The  Court.  I  will  saj  that  I  supposed  there  would  be  some  end  to  this 
matter  of  inquiring  as  to  who  has  examined  witnesses.  It  is  altogether  wrong. 
It  is  a  needless  waste  of  time ;  and  I  here  take  occasion  to  say,  that  if  any 
government  officer  did  not  use  due  diligence,  in  an  important  trial,  to  find  out 
what  he  could  prove  by  witnesses,  he  would  be  very  derelict  in  his  duty.  If 
I  were  a  public  officer  prosecuting  causes,  I  should  feel  it  my  duty,  in  every 
important  case,  to  see  and  examine  the  witnesses ;  and  a  lawyer  who  does  not 
do  80,  in  my  estimation — I  may  be  wrong— does  not  do  his  duty  to  his  client. 

Mr.  PiBRRBPONT  said  it  was  the  duty  of  the  government  to  prosecute  crime, 
and  find  out  who  committed  it.  If  a  government  could  not  protect  its  citizens, 
sach  government  could  not  protect  itself. 

Mr.  Bradlbv  thought  the  government  had  abundant  means  in  the  judicial 
department,  without  bringing  in  extraneous  aid  from  any  other  branch  of  the 
government,  to  seek  out  and  to  bring  to  punishment  criminals.  He  thought  it 
the  duty  of  every  citizen  to  communicate  any  facts ;  but  he  solemnly  protested 
against  any  secret  tribunal  to  investigate  proof,  and  probably  to  create  proof. 
He  agreed  that  as  to  matters  connected  with  the  army  Mr.  Holt  had  authority ; 
but  he  denied  that  Mr.  Holt,  or  the  War  Department,  had  a  right  to  investigate 
matters  as  to  private  citizens.  There  was  a  great  difference  between  now  and 
three  vears  ago,  when  a  great  struggle  was  going  on  in  the  country.  Under 
what  law  did  Mr.  Holt  undertake  to  examine  into  a  case  pending  in  a  civil 
tribunal  ?  If  there  was  such  authority,  he  called  for  the  statute.  Judge  Holt 
wag  a  private  citizen.  The  prosecution  must  show  some  authority  for  Mr.  Ilolt's 
investigating  matters. 

Mr.  Mbrrick  said  it  must  be  shown  that  the  party  examining  was  a  duly 
authorized  attorney  of  the  United  States. 

The  Court  said  they  could  proceed  with  the  examination  of  the  witnesses ; 
tbat  it  was  proper  to  ask  a  witness  who  he  had  spoken  to  concerning  the  testi- 
i&ony  he  would  give,  with  a  view  of  showing  that  he  had  said  on  another  occa- 
sion something  diffei'ent  from  what  he  had  said  on  the  present  one.  He  only 
desired  to  intimate  to  counsel  that  a  great  deal  of  time  was  taken  up  in  examin- 
ing into  matters  of  this  sort,  where  there  did  not  appear  to  be  any  point  in  the 
question. 

Mr.  Bradley  stated  that,  whenever  the  court  required  it,  they  would  always 
disclose  the  object  of  their  question;  but  he  would  submit  that,  on  cross- 
examination,  it  had  the  effect  to  cut  the  throat  of  the  examination,  to  be  called 
upon  to  make  known  the  object  of  the  question. 

Examination  resumed  by  Mr.  Merrick  : 

Q.  Describe  the  elderly  gentleman. 

A.  He  was  sitting  down  at  the  time  he  was  examining  me,  and  I  couldn't  tell 
whether  he  was  a  very  tall  man,  or  not.  He  was  an  old  gentleman,  however ; 
his  haur  was  gray.     It  was  not  white,  but  it  was  a  silvery  gray. 

Q.  Was  it  long? 

A.  Yes,  sir,  it  was  rather  long,  tolerably  so.  He  had  a  little  gray  beard  just 
on  his  jaw. 

Q-  Was  there  anything  remarkable  about  his  face  that  you  observed  ? 

^'  I  did  not  see  him  full  in  the  face.  I  was  sitting  just  between  the  two 
gentltmen.    I  saw  his  side  face  only. 

Q-  Did  he  have  a  heavy,  large  head  ? 

^'  I  did  not  notice  it  particularly. 

\'  Did  you  notice  his  nose  ? 

A.  Not  particularly. 


220  TRIAL  OF  JOHN  H.   SUBRATT. 

Q.  In  what  room  were  you  examined? 

A.  If  I  am  .not  mistaken,  while  in  the  passage-way,  looking  round,  I  saw  over 
the  door  the  words,  "Judge  Advocate  General's  office." 

The  District  Attorney.  If  your  honor  please,  I  think  it  proper  for  me  to 
state  that  the  Judge  Advocate  General  is  not  examining  witnesses  in  this  case; 
not  assisting  us  at  all. 

Mr.  Bradley  (to  the  court.)  If  so,  let  him  state  it  under  oath. 

Brooke  Stabler.    Examination  resumed. 

By  Mr.  Pibrrbpont  : 

Q.  Yesterday  you  produced  this  letter  of  March  26,  1865,  from  Mrs.  Surratt* 
Tell  us  what  that  team  was  that  came  back  with  this  letter  ? 

A.  It  was  a  horse  and  buggy. 

Q.  Were  there  two  horses  ? 

A.  There  was  one  horse  and  buggy. 

Mr.  Bradley.  I  object.    That  was  all  brought  out  yesterday. 

Mr.  Pierrepont.  It  was,  and  I  am  coming  to  that.  I  think  he  was  mistaken 
about  the  team. 

Q.  Will  you  tell  the  color  of  the  team  ? 

A.  That  I  cannot 

Q.  Can  you  tell  whether  they  were  gray  or  white  horses  1 

A.  I  do  not  recollect  of  his  having  a  double  team  but  once,  and  I  do  not  think 
that  was  the  time. 

Q.  What  was  the  double  team  1 

A.  I  cannot  put  them  together  now. 

Q.  Can  you  state  what  color  the  double  team  was  ? 

A.  I  do  not  recollect. 

Q.  Can  you  tell  whether  you  had  a  team  of  white  hoises,  or  gray,  at  that 
time? 

A.  I  had  one  that  was  sometimes  put  double — ^rarely  two  grays  together. 

Q.  Were  you  accustomed  to  speak  of  a  siugle  horse  as  a  team  ? 

A.  0,  yes ;  that  was  a  common  thing. 

Q.  Will  you  name  the  persons  you  saw  at  your  stable  conversing  together 
with  Surratt  1 

Mr.  Bradley.  I  object.    That  all  came  out  yesterday. 

Mr.  Pierrepont.  He  may  not  have  stated  them  all.  Name  the  persons,  if 
you  please. 

A.  I  have  seen  Booth,  Atzerodt,  and  Herold. 

Q.  With  whom  ? 

A.  With  Surratt. 

Q.  Did  you  omit  any  name  yesterday  ? 

A.  Yes,  sir ;  Herold's  name  was  omitted  yesterday. 

Q.  Did  you  have  any  conversation  with  either  of  those  men  in  relation  to 
Surratt's  trip  anywhere;  and  if  so,  what  was  it  ? 

A.  I  had  with  Atzerodt. 

Q.  State  what  it  was. 

A.  He  showed  me  the  conclusion  of  a  letter  which  he  had  received  froU^ 
Surratt,  stating 

Mr.  Bradley.  Never  mind  that. 

Mr.  Pierrepont.  You  can  state  what  Atzerodt  said.    What  did  he  say  ? 

A.  He  told  me  that  he  had  a  letter  in  his  hand  from  Surratt,  but  that  he  wool^ 
not  let  me  see  it  all.     He  opened  it,  and  the  concluding  paragraph  I  read. 

Q.  What  further  did  he  say? 

A.  He  said  that  in  that  letter 

"'-  Bradley.  I  thought  you  said  that  you  read  that  part  of  the  letter. 


TRUL   OF  JOHN  H.   8UBRATT.  221 

Mr.  PiBRREPONT.  I  am  not  asking  him  as  to  what  he  read,  but  as  to  what 
Atzcrodt  said  to  him  regarding  the  contents  of  that  letter.  He  ^as  a  right  to 
tell  OS  what  Atzerodt  said  to  him. 

The  Court.  Whatever  Atzerodt  said  is  testimony,  whether  he  said  it  was 
in  the  letter  or  not.    His  sajing  so  and  so  was  in  the  letter  would  not  put  it 
there ;  nor  his  saying  so  and  so  was  not  there  would  not  take  it  away  if  it  was 
there.     The  object,  as  I  understand  it,  is  to  get  at  the  conversation. 
Mr.  PiBRREPONT.  Will  you  state  what  he  said  ? 

A.  He  told  me  that  he  would  not  show  me  the  letter — the  body  of  it — ^but 
that  he  would  show  me  the  latter  part  of  it.  He  stated  that  the  letter  was  dated 
in  Richmond,  and  that  he  had  understood  that  the  detectives  were  after  him,  and 
be  was  making  his  way  north  as  fast  as  he  could.  That  is  about  the  amount  of 
what  Atzcrodt  told  me. 
Q.  Did  he  say  anything  farther  ? 

A.  Nothing  more  than  a  reiteration  of  the  same.  He  said  it  over  two  or 
tliree  times.  He  positively  refused  to  show  me  any  more  of  the  letter  than  that. 
Q.  Did  he,  at  the  time  of  this  conversation,  state  where  Surratt  then  was  1 
Mr.  Bradley.  If  your  honor  pleases,  I  think  it  is  time  to  interpose  an  ob- 
jection to  this  line  of  examination.  The  witness  has  stated  that  Atzerodt  showed 
to  him  a  letter  which  he  said  was  dated  at  Richmond,  and  which  contained  what 
the  witness  has  repeated.  To  follow  it  up  looks  very  much  to  me  like  a  cross- 
examiuation. 

Mr.  Pirbrepont.  I  have  a  right,  I  suppose,  to  call  his  attention  to  specific 
matters,  such,  for  instance,  as  to  inquire  whether  he  stated  where  Surratt  was  ? 
The  Court.  You  have  a  right  to  put  such  questions  as  will  have  the  effect 
to  refresh  his  memory,  but  not  to  put  them  in  such  a  form  as  to  render  them 
leading. 
Mr.  PiBRREPONT.  I  will  then  make  the  question  more  general. 
Q.  Will  you  state  how  the  conversation  between  yon  and  Atzerodt  com- 
menced ? 
A.  He  called  me  out  on  the  edge  of  the  pavement  and  told  me  what  he  had. 
Q.  Did  you  ask  him  anything  1 
A.  Nothing  more  than  to  let  me  see  the  letter. 

Q.  And  when  he  declined  to  do  so,  what  did  you  say  further,  if  anything  ] 
A.  I  do  not  recollect  saying  anything  particular. 

Q.  Was  there  anything  said  as  to  where  Surratt  was  at  the  time  of  this  con- 
versation ?     If  so,  what  was  it  ? 

A.  There  is  nothing  on  my  mind  now  that  I  can  recall.  I  do  not  think  there 
^as  any  impression  made  on  my  mind  that  would  lead  me  to  say  where  he  was. 
He  did  not  say. 

Q-  Did  he  say  anything  that  explained  to  you  what  he  meant  by  making  his 
^ay  north — north  from  what  point  ? 
A.  North  from  Richmond. 

Q-  Did  he  say  anything  more  to  you  in  relation  to  the  difficulty  that  Surratt 
^aain?  and  if  so,  what? 
^  That  is  the  only  difficulty  that  he  spoke  of — ^about  detectives. 
Q*  Did  he  name  to  you  whose  detectives  they  were — whether  they  were 
tolonel  Baker's,  or  any  other  squad  ? 
^  I  do  not  recollect  whether  they  were  Colonel  Baker's,  or  whose  they  were 

I'^government  detectives. 
Y  ^^  did  not  name  whose  particular  squad  that  you  remember  1 
^  No,  BUT ;  I  do  not  recollect  that  he  did. 
^  You  say  government  detectives— detectives  of  what  government  1 
A-  Government  of  the  United  States. 


222  TRIAL  OF  JOHN  H.  SURRATT. 

By  Mr.  Bradley: 

Q.  Do  you  mean  Atzerodt  said  United  States  detectives,  or  was  that  your  in- 
ference from  what  he  said  ? 

A.  I  mean  that  he  told  me  that  the  detectives  were  af^er  him. 

Q.  And  you  understood  they  were  government  detectives  ;  but  I  do  not  un- 
derstand you  to  say  that  he  told  you  they  were  government  detectives  1 

A.  I  do  not  recollect  that  he  said  government  detectives,  but  that  is  what  he 
meant. 

By  Mr.  Pierrepont  : 

Q.  Preceding  that,  did  you  have  any  conversation  in  relation  to  the  payment 
of  any  bill  ? 

Mr.  Bradley.  Conversation  with  whom? 

Mr.  PiEHREPONT.  Why,  with  either  of  those  parties  ?  To  the  witness.  Idonot 
mean  to  ask  you  with  regard  to  anybody  else,  except  some  one  of  those  that  you 
have  mentioned  ? 

A.  I  think  I  had  a  letter  from  Surratt,  telling  me,  in  his  absence,  to  call  upon 
Booth. 

Mr.  Bradley.  Wait  a  moment.    Where  is  that  letter  ? 

Mr.  Pierrepont.  I  have  not  yet  asked  the  witness  about  the  letter.  I  am 
going  to,  but  I  do  not  choose  to  interrogate  him  about  it  at  this  point. 

Q.  I  ask  you  what  conversation  you  had  in  March,  at  the  stable,  if  any  ? 

A.  I  do  not  know  that  I  can  particularize  anything.  There  was  frequent  talk 
about  our  money  matters.  Surratt  would  frequently  ask  me  if  I  wanted  any  monej. 

Q.  I  will  call  your  attention  to  the  time  when  Atzerodt  took  away  a  blind 
horse,  if  any  sucn  thing  ever  occurred.     Do  you  remember  of  any  such  thing  ? 

A.  I  do. 

Q.  About  when  was  it  that  he  took  away  the  blind  horse  ? 

A.  As  to  the  time,  I  cannot  tell  you. 

Q.  Can  you  tell  about  the  time  1 

A.  No,  sir,  I  cannot. 

Q.  Blind  of  one  eye,  I  understand  this  horse  was  ? 

A.  Yes,  sir. 

Q.  What  kind  of  a  horse  was  it  ? 

A.  It  was  a  saddle  horse — a  fine  racking  horse. 

Q.  Was  there  any  other  horse  taken  away  at  the  same  time  1 

A.  There  was  a  bay  horse. 

Q.  What  kind  of  a  horse  was  that  in  size  ? 

A.  Lighter  than  the  other. 

Q.  Why  did  Atzerodt  take  away  those  horses  1  Who  claimed  to  own  themt 
Who  was  the  owner,  in  fact  ? 

A.  They  were  Surratt's  horses — entered  by  him,  at  least. 

Q.  Who  paid  for  their  keep  ? 

A.  Booth. 

Q.  Were  these  two  horses  returned  afterwards  ? 

A.  No,  sir. 

Q.  I  do  not  mean  to  keep,  but  for  any  purpose  ? 

A.  They  were  brought  there  by  Atzerodt  to  sell. 

Q.  That  is  what  I  am  asking  about.     Did  they  succeed  in  selling  them? 

A.  They  did  not. 

Q.  Then  what  was  done  with  them  ? 

A.  He  took  them  away. 

Q.  Who  took  them  away  ? 

A.  Atzerodt. 

Q.  When  did  you  last  see  this  one-eyed  horse — this  fine  racker? 

A.  I  saw  him  in  the  government  stables  on  19th  street. 


TRIAL  OF  JOHN  H  8URBATT.  223 

Q.  When  ? 

A.  DnriD^  the  trial  at  the  arsenal 

Q.  What  ie  called  the  conspirators'  trial  ? 

A.  Yes,  sir.     I  went  up  there  at  the  instance  of  the  judge  advocate,  to  see  if 
he  was  there  and  to  see  if  I  could  recognize  him. 

Q.  Did  you  ? 

A.  I  did. 

Q.  Please  state  whether  that  is  the  written  order  of  which  you  have  spoken 
heretofore.     (Handing  witness  a  paper.) 

A.  (After  examining  the  paper.)     That  is  it. 

Q.  In  whose  handwriting  is  it  ? 

A.  John  H.  Surratt's. 

Mr.  Bradley.  Did  you  ever  see  him  write? 

Witness.  Yes,  sir.    More  of  these  papers  are  on  file  now,  I  presume.    I  put 
them  away.     They  are  orders  and  directions  of  various  kinds. 

Mr.  Mb R RICK.  What  is  that  paper  marked  ? 

Mr.  Wilson.  "Exhibit  27." 

Mr.  PiERREPONT.  I  will  uow  read  this  note  to  the  jury. 

He  then  read  as  follows : 

"Mr.  Howard  will  please  let  the  bearer,  Mr.  Atzerodt,  have  my  horse  when- 
ever he  wishes  to  ride;  also  my  leggings  and  gloves;  and  oblige,  yours,  &c. 

(Signed)  "J.  H.  8URRATT, 

"541  H  street,  between  Sixth  and  Seventh  streets. 

"Feb.  22,  1865." 

Q.  Will  you  now  state  to  the  jury  whether  you  acted  on  this  order,  and  did 
let  him  have  the  horses  under  it  ? 
A  I  did,  until  that  order  was  rescinded. 

Q.  When  these  horses  of  Surratt's  were  taken  from  the  stables  who  took  them 
away] 
A.  Mr.  Booth  took  them  away. 
Q.  Who  paid  for  them? 
A.  Booth. 

Mr.  PiERREPONT.  It  is  possiblc  that  you  have  stated,  when  they  were  brought 
hack  to  sell,  who  took  them  again.     If  so,  I  do  not  want  it  again. 
A.  I  have. 

Q-  In  reference  to  the  men  coming  to  your  stable,  to  what  part  of  the  stable 
aid  they  go  ? 
A.  They  went  down  to  the  lower  end  of  the  stable. 
Q'  That  was  the  back  part  ? 
^'  Yes,  sir. 

Q-  What  did  they  do  when  they  got  down  to  the  back  part  of  the  stable  ? 
A.  That  I  do  not  know.     They  would  be  conversing  together.     Frequently 

Q-  Will  you  state  what  the  manner  of  the  conversation  was,  so  that  these 
S^Btlemen  can  understand  it  ?  I  mean  as  to  whether  it  was  in  a  loud  or  in  a 
^nfidential,  whispering  tone. 

^-  They  would  generally  be  about  150  feet  from  me;  from  100  to  150  feet, 
o^ttietimes  I  would  see  them  when  they  would  be  down  there ;  at  other  times 

^<>^(i  not ;  I  would  be  busy  in  the  office. 

J  Could  you  hear  anything  they  said  ? 

^  No,  sir. 

J-  What  was  their  manner  of  conversation  ? 

^  ^t  was  not  so  that  I  could  hear  any  voice  at  all. 

y  It  Was  hi  a  low  tone,  then  ? 

^'  Well,  the  usual  tone,  I  suppose ;  I  could  not  tell  from  the  distance  I  wa». 

^*  Tou  could  not  hear  anything  that  was  said  ? 


224  TRIAL  OF  JOHN   H.   SURRATT. 

A.  No,  sir.     I  could  not  hear  anything  of  tbe  conversation,  of  course.    They 
would  be  further  from  mo  than  the  length  of  this  room. 
Q.  Their  appearance  indicated  conversation  1 
A.  Yes,  sir;  indicated  conversation,  of  course. 

Gross-examination  bj  Mr.  Bradley: 

Q.  You  say  those  horses  were  claimed  by  John  H.  Surratt  when  they  were 
taken  away  by  Booth.  Was  it  under  any  claim  of  ownership  ?  When  they  wer^ 
taken  by  Booth  who  paid  for  their  keep  ?  Did  he  take  them  away,  or  claim  that 
he  had  purchased  them  1 

A.  He  took  them  away  after  I  had  received  information  from  Surratt  that  he 
would  take  them  away  and  pay  for  their  keep. 

Q.  Was  anything  said  about  their  having  been  sold  ? 

A.  Not  that  I  recollect  of  now. 

Q.  You  say  Booth  paid  for  them  when  he  took  them  away.  Had  not  Smrratt 
before  that  paid  for  them  from  time  to  time  ? 

A.  He  had  paid  previously,  certainly. 

Q.  When  you  say  that  Atzerodt  held  that  letter  in  his  hands  and  stated  that 
it  was  dated  Richmond,  do  you  recollect  whether  he  did  not  tell  you  that  Surratt 
had  been  to  Richmond,  and  on  his  way  back  had  had  a  dif&culty,  and  that 
the  detectives  were  after  him  ? 

A.  I  saw  the  date  of  the  letter  myself.     He  may  have  said  that. 

Mr.  Bradlbv.  Never  mind  about  that;  I  want  to  know  what  Atzerodt  said. 
I  want  to  know  whether  Atzerodt  did  not  tell  you  that  Surratt  had  been  to 
Richmond,  and  coming  back  had  got  into  difficulty,  and  that  the  detectives  were 
after  him,  and  that  he  was  making  his  way  to  the  north  ? 

A.  The  idea  conveyed  to  my  mind  was  that  he  had  heard  the  detectives  were 
after  him,  and  that  he  was  about  to  leave,  or  may  be,  had  left  Richmond. 

Q.  You  were  examined  before  the  military  commission  about  the  middle  of 
May] 

A.  Yes,  sir. 

Q.  Your  memory  was  fresher  then  than  it  is  now  ? 

A.  On  some  points  it  was. 

Q.  Do  you  now  recollect  with  any  distinctness  what  time  in  April  that  con- 
versation occurred  ? 

A.  I  cannot  tell  you  the  time  precisely.  I  cannot  say  whether  it  was  in  April 
or  not.     I  only  recollect  the  circumstances. 

Q.  You  have  stated  before  that  in  the  early  part  of  April  Atzerodt  told  me  so 
and  so.     Is  that  your  recollection  now,  that  it  was  the  early  part  of  April  ? 

A.  It  must  have  been  in  the  early  part  of  April,  or  previous  to  that.  I  do 
not  recollect  dates  very  well. 

By  Mr.  Pierrepont.  You  stated  to  the  counsel  that  you  saw  the  date  of 
the  letter. 

Mr.  Bradley.  That  was  not  in  answer  to  any  question  of  mine;  and, 
therefore,  I  do  not  think  it  proper  that  you  should  refer  to  it  at  all.  I  told  the 
witness  at  the  time  that  I  did  not  want  him  to  state  anything  about  that,  but  only 
to  state  what  Atzerodt  said ;  and  I  will  now  ask  the  court  to  tell  the  jury  th«t 
that  is  not  evidence. 

The  Court.  Of  course,  gentlemen,  that  answer  of  the  witness  is  not  evidence. 
You  will  understand  that. 

Mr.  PiKRREPONT.  I  will  not  ask  the  witness  the  question  I  intended,  but  wiM 
put  another. 

Q,  I  simply  want  to  ask  you  one  question,  and  that  is  regarding  your  name- 
There  seems  to  be  some  misunderstanding  among  us  both  in  regard  tu  it. 

A.  My  name  is  Brooke  Stabler. 


TRIAL   OP  JOHN  H.   SUBBATT.  225 

Q.  Do  you  go  by  the  name  of  "  Brook"  or  "  Stabler*'  generally,  when  spoken  of  ? 
A.  Familiarly  they  call  me  by  my  first  name,  "Brook." 

By  a  Juror : 

Q.  Is  it  not  a  very  common  thing  for  gentlemen  who  keep  horses  in  your 
Rtable  to  walk  to  the  end  of  your  stable  ? 
A.  Many  do. 

Jambs  W.  Pumphrky,  livery-stable  keeper — residence,  Washington — sworn 
and  examined. 

By  the  District  Attorney  : 

Q.  Where  do  you  reside  ? 
A.  I  reside  at  No.  252  C  street. 
Q.  State  your  business,  and  your  place  of  business. 

A.  I  am  keeper  of  a  livery  stable,  244  C  street,  between  Four-and-a-half  and 
Sixth. 
Q.  In  this  city? 
A.  Yes,  sir. 

Q.  How  long  have  you  been  doing  business  there  ? 
A.  I  have  been  in  business  about  eleven  years. 
Q.  State  if  you  knew  John  Wilkes  Booth. 
A.  I  did. 

Q.  State  when,  where,  and  under  what  circumstances  you  first  formed  his 
acquaintance. 

A.  John  Wilkes  Booth  came  to  my  stable  one  day  for  a  saddle-horse.  Ho 
aaked  for  the  proprietor;  I  stepped  up  and  told  him  I  was  the  man.  He  said 
te  wanted  a  saddle-horse  to  ride  for  a  few  hours.  I  cannot  tell  the  exact  day 
that  he  jcame  there.  I  did  not  know  at  the  time  it  was  Booth,  but  found  out 
that  it  was  after  talking  with  him  a  short  wbile.  He  said  he  wanted  a  sad- 
dle-horse to  take  a  few  hours'  ride  in  the  country,  I  told  him  I  could  let  him 
have  one.  He  said  he  did  not  wish  any  but  a  good  one.  I  told  him  I  had  a 
very  good  saddle  horse,  I  thought.  He  then  said  :  "  I  wish  you  would  have 
him  saddled."  I  ordered  him  saddled,  and  then  said  to  him :  *'  You  are  a 
Btranger  to  me ;  and  it  is  always  customary  with  ine  when  I  hire  a  horse  to  a 
Rtranger  to  havp  him  give  me  some  security,  or  some  satisfactory  reference." 
At  that  time  Mr.  Surratt — I  do  not  know  whether  he  stood  across  the  street,  or 
came  over 
Q.  The  prisoner  ? 

A.  Yes,  sir.     Surratt  said  he  knew  him ;  that  it  was  Mr.  Booth,  and  he  would 
t*ke  good  care  of  the  horse.     I  cannot  now  tell  whether  the  prisoner  came  over 
Md  said  this  to  me,  or  stood  on  the  opposite  side  of  the  street  and  hallooed 
across. 
Q.  How  long  have  you  known  the  prisoner  ? 
A.  A  great  many  years. 

Q  State  as  near  as  you  can  all  that  Surratt  said  at  that  time. 
A«  I  think  he  said  he  would  see  mc  paid  for  it ;  that  he  was  going  to  take  a 
nde  with  Mr.  Booth. 
Q.  Go  on. 

A.  That  is  about  all.  I  went  in  and  ordered  the  horse  to  be  saddled  and  brought 
^  There  were  some  gentlemen  sitting  in  front  of  my  stable  at  the  time, 
"ho  they  were  I  do  not  know. 

Q*  What  kind  of  a  horse  was  it  ? 
-  A,  A  light  sorrel.     When  I  came  out  with  the  horse  saddled,  he  wa^s  gone. 
*  *«ked  some  of  them  out  at  the  door  where  he  went  ?     They  said  they  thought 
^^  Went  to  the  Pennsylvania  House.    The  boy  stood  at  the  door  with  the  horse 


226  TRIAL   OP   JOHN   H.   8URRATT. 

and  I  stood  out  there,  watcbin^  for  him.  I  saw  him  come  out  of  the  Pennsjl- 
vania  House.  He  came  out  alone,  and  came  over  and  started  off  on  the  horse 
alone. 

Q.  Where  is  this  Pennsylvania  House  1 

A.  It  is  on  the  south  side  of  G  street,  between  Four-and-a-half  and  Sixth, 
opposite  to  the  old  Exchange  Hotel. 

Q.  Will  you  state  the  next  time  you  saw  John  Wilkes  Booth  1 

A.  I  could  not  tell  the  date  when  he  next  came  to  my  stable. 

Q.  When  was  it  you  had  this  interview — how  long  previous  to  the  assas- 
sinatiou  of  the  President  ? 

A.  I  really  forget — ^may-be  six  weeks  or  two  months  before.  May-be  a  little 
more  and  may -be  a  little  less.     I  cannot  tell  the  exact  time. 

Q.  State  the  next  time  you  saw  the  prisoner. 

A.  I  do  not  remember  of  ever  seeing  Mr.  Surratt  after  that.  He  never  called 
at  my  stable  after  that  time. 

Q.  State  the  next  time  you  saw  John  Wilkes  Booth. 

A.  That  I  could  not  do ;  but  it  was  not  a  great  while — may-be  a  week  or  ten 
days,  or  two  weeks.  He  was  in  the  habit  of  coming  to  my  stable  and  hiring 
horses  after  the  time  to  which  I  have  alluded.  He  generally  rode  the  same 
horse  ;  always  when  he  could  get  him. 

Q.  I  will  ask  you  if  you  saw  him  on  the  14th  of  April,  1865  ? 

A.  Yes,  sir.    He  called  at  my  stable  that  morning. 

Q.  State  what  time  it  was  you  saw  him. 

A.  Somewhere  between  11  and  1  o'clock,  as  well  as  I  can  remember.  I 
did  not  pay  much  attention  to  the  time.  He  called  for  a  saddle  horse,  stating 
that  he  wanted  to  take  a  ride  that  afternoon.  He  expressed  a  desire  to  have 
the  same  horse  that  he  had  been  in  the  habit  of  riding.  I  told  him  he  was 
engaged,  and  therefore  he  could  not  have  him.  He  wanted  te  know  if  I  could 
not  put  the  person  off  to  whom  I  had  engaged  him,  and  let  the  man  have  the 
horse  that  I  was  to  give  him.  I  told  him  I  could  not  do  that.  He  then  wanted 
me  to  give  him  a  good  one.  I  told  him  that  the  horse  I  was  going  to  give  him 
was  a  very  good  saddle  horse.  I  told  him  I  thought  so,  and  he  would  think  so 
after  he  had  ridden  him.  He  says  :  "  Well,  don't  give  me  any  but  a  good  one." 
I  told  him  I  wouldn't ;  that  I  would  give  give  him  a  little  mare ;  that  she  was 
small,  but  a  very  good  one. 

Q.  What  color  was  the  mare  ? 

A.  She  was  a  bay  mare,  about  fourteen  hands  high.  I  put  on  her  an  English 
saddle,  and  a  snaffle-bit  bridle.     I  have  never  seen  saddle,  bridle,  or  Booth  since. 

Q.  Did  you  ever  see  the  prisoner  afterwards  ? 

A.  I  never  saw  Mr.  Surratt  from  the  first  time  he  came  there  with  him.  I^ 
I  did,  I  do  not  remember  it.    He  never  called  at  my  place. 

Cross-examination : 

By  Mr.  Bradley  : 

Q.  You  say  that  you  have  been  in  business  eleven  years  1 
A.  Yes,  sir. 

Q.  Did  you  keep  a  stable  at  the  comer  of  Sixth  and  C  streets  1 
A.  I  did.     I  went  there  in  1856. 
Q.  Did  you  ever  see  Mr.  Surratt  there  ? 

A.  I  have  seen  Mr.  Surratt  come  with  his  father  very  often  to  that  corneri 
and  where  I  am  at  present.   - 
Q.  How  large  was  he  then  1 

A.  He  was  very  small.     I  went  to  keep  the  stable  in  1856. 
Q.  At  what  time  did  you  go  where  you  are] 
A.  In  1858.     Surratt  was  but  a  small  boy  when  I  first  knew  him. 


TBIAL   OP  JOHN   H.   8URRATT.  227 

The  Court.  A  small  boy  in  1858? 

Mr.  Bradlby.  Yes,  sir.     He  is  only  23  or  24  years  old  now. 
Q.  You  say  you  took  charge  of  the  stable  where  you  are  now  in  1858  t 
A.  Yes,  sir.     October  5,  1858. 

Q.  Did  you  ever  see  Mr.  David  Reed  about  that  stable  1 
A.  He  has  been  there  ;  but  he  never  stopped  over  five  minutes.     I  do  not  think 
he  was  ever  there  more  than  half  a  dozen  times  in  his  life. 

John  Flbtcukr — ^residence  in  Washington — sworn  and  examined. 

By  Mr.  Pierrepont  : 

Q.  Where  do  you  reside  1 

A.  At  Tim  Nailor's  livery  stable,  upon  E  street,  between  Thirteen-and-a 
half  and  Fourteenth  streets. 
Q.  Where  did  you  reside  on  the  14th  of  April,  1865  ? 
A.  At  Nailer's  stable. 
Q.  At  the  same  place  1 
A.  Yes,  sir. 

Q.  On  the  14th  of  April,  1865,  did  you  see  Atzerodt  and  Herold? 
A.  Yes,  sir. 

Q.  State  where  you  saw  them  and  what  occurred. 
A.  I  saw  them  at  Nailer's  stable,  but  not  together. 
Q.  Who  did  you  see  fii-st  ? 
A.  Atzerodt. 

Q.  Subsequently,  did  you  see  Herold  t 
A.  In  about  an  hour  after. 
Q.  Will  you  state  what  Herold  did  1 
A.  He  engaged  a  horse  of  me. 
Q.  What  did  he  say  ? 
A.  He  wanted  to  kiiow  what  was  the  price. 

Q.  How  long  did  he  tell  you  to  keep  it,  or  did  he  tell  you  ? 

A.  He  told  me  to  keep  it  for  him  until  ten  minutes  past  4  o'clock. 

Q.  Bid  he  come  there  at  that  hour,  or  about  it  ? 

A.  Yes,  sir. 

Q.  Then  what  did  he  say  ? 

A.  When  he  came  in  he  asked  me  if  I  had  the  horse  ready,  and  I  told  him 
I  Ud.    He  asked  me  how  much  I  charged,  and  I  told  him  $5. 

Q.  Did  he  tell  you  what  he  wanted  the  horee  for  ? 

A.  He  told  me  he  was  going  to  ride  with  a  lady. 

Q-  What  did  you  say  to  that  ? 

A.  I  Baid  nothing  to  it. 

Q-  Did  he  inquire  for  any  particular  horse  1 

^'  Yes,  sir. 

Q.  What  horse? 

A.  A  light-colored  roan  horse  in  the  stable,  called  Charley. 

Q-  Did  he  get  that  horse  ? 

^  Yes,  sir. 

Q  Did  you  have  any  conversation  with  him  about  taking  another  horse  ? 

^'  Yes,  sir. 

y  What  did  he  say  about  that  ? 

^'  He  did  not  like  that  horse  so  well.    He  wanted  that  light-colored  roan  horse. 

V  Did  you  finaUy  give  it  to  him  ? 

^  Yes,  sir. 

J.  What  else  did  he  want? 

^*  Be  wanted  an  English  saddle  and  bridle  to  the  same  horse. 


228  TBIAL  OF  JOHN  H.  SURBATT. 

Q.  Did  he  aek  to  see  them  ? 

A.  Yes,  sir. 

Q.  Did  you  show  them  ? 

A.  Yes,  sir. 

Q.  What  did  he  aaj  when  you  showed  them  ? 

A.  He  did  not  say  anything.     I  took  him  into  the  harness  room. 

Q.  Did  he  say  anything  ahout  the  size  of  either  } 

A.  No,  sir. 

Q.  Did  you  show  him  a  saddle  7 

A.  Yes,  sir. 

Q.  What  did  he  say  of  that  ? 

A.  I  showed  him  two  different  saddles,  neither  of  which  suited  him,  and  he 
picked  out  one  of  his  own  choosing. 

Q.  Did  he  take  that? 

A.  Yes,  sir. 

Q.  Did  he  say  anything  ahout  the  stirrups  of  the  saddle  ? 

A.  Yes,  sir.  1  showed  him  a  saddle  on  which  were  military  stirrups,  but  he 
did  not  like  that  so  well  as  the  English  saddle  and  stirrups. 

Q.  Which  did  he  take? 

A.  He  took  the  iron  stirrups,  and  the  English  saddle. 

Q.  Did  he  want  a  particular  hridle  ? 

A.  Yes,  sir ;  and  I  took  him  into  the  office  and  showed  him  the  hridles. 

Q.  What  kind  of  bridle  did  he  select? 

A.  A  double-rein  bridle,  with  two  bits  on. 

Q.  What  did  he  ask  you  before  he  mounted  ? 

A.  He  did  not  ask  me  anything. 

Q.  Did  he  at  any  time  say  anything  to  you  about  staying  out  ? 

A.  I  asked  him  how  long  he  was  going  to  stay  out.  He  said  he  did  not 
know.  I  then  told  him  he  could  not  keep  the  horse  out  any  later  than  8  o'clock — 
9  o'clock  at  the  furthest. 

Q.  When  8  or  9  o'clock  came,  what  happened  ? 

A.  Nothing  happened  at  that  time  between  him  and  myself. 

Q.  What  did  vou  do  ? 

A.  I  did  not  do  anything. 

Q.  Did  the  horse  come  back  at  that  time  ? 

A.  No,  sir. 

Q.  What  then  did  you  do  ?    Did  you  go  out  to  look  for  the  horse  ? 

A.  Not  at  that  time. 

Q.  Did  you  at  any  time  ? 

A.  Yes,  sir. 

Q.  Did  you  see  Atzerodt  and  Herold  ? 

A.  No,  sir. 

Mr.  Bradlbv.  I  do  not  like  to  interpose,  but  I  must  say  that  this  is  a  ino«t 
leading  examination. 

Mr.  PiERREPONT.  I  admit  it  is  leading,  but  I  cannot  get  the  witness  to  nar- 
rate. 

The  Court.  Let  us  try  and  see  if  we  cannot.  It  is  always  best  to  aroid 
leading  questions. 

Q.  Can  you  tell  when  you  saw  these  two  men  together  ? 

A.  I  never  saw  the  two  of  them  together  that  day  at  all ;  I  saw  them  sep 
arately. 

Q.  Did  you  see  them  separately  at  your  stable  ? 

A.  Yes,  sir. 

Q.  What  did  you  do  ahout  9  o'clock  ? 

A.  When  it  came  to  9  o'clock  I  had  suspicion  about  the  man  not  retnnuDg 


TRIAL  OP  JOHN  H.   SURE  ATT.  229 

the  horse.  Atzerodt  came  after  his  horse  about  10  o'clock.  I  sent  one  of 
)oys  down  the  stable  to  get  the  horse  ready  for  him.  He  afterwards  wanted 
low  if  I  would  not  go  and  take  a  drink  with  him.  I  told  him  that  I  had 
)jection.  He  and  I  then  went  down  to  the  Union  Hotel  and  had  a  glass  of  ale. 
^ked  me  if  I  would  have  any  more.  I  thanked  him,  but  told  him  I  would 
ake  any  more.  Returning  back  to  the  stable,  he  said  to  me,  "  If  this  thing 
ens  to-night,  you  will  hear  of  a  present"  When  he  had  mounted  his  horse 
narked  to  him,  *'  I  would  not  like  to  ride  that  horse  this  time  of  night ;  he 
J  too  Bearish ."  Said  he,  "  He  is  good  on  a  retreat."  He  seemed  to  be 
much  excited.  Having  suspicion  of  him,becanse  of  his  acquaintance,  Herold, 
returning  with  the  horse  at  9  o'clock,  as  I  told  him  to  do,  I  followed  after 
and  saw  him  alight  in  front  of  the  Kirkwood  House,  hitch  his  horse  out- 
and  then  enter  the  hotel.  I  waited  until  he  came  out  and  mounted  again, 
went  along  the  avenue  a  short  way,  and  then  turned  into  D  street; 
t  along  D  street  to  Tenth,  which  he  turned  up.  That  was  the  last  I  saw  of 
I  then  returned  back  to  the  stable,  and  inquired  at  the  office  if  the  roan 
e  had  come  in.     They  told  me  that  it  had  not. 

By  Assistant  District  Attorney  Wilson  : 

[.  What  time  was  it  when  Atzerodt  turned  up  Tenth  street  ? 
i'  I  think  it  was  ten  minutes  past  10  o'clock. 
!•  Did  you  see  him  again  ? 
-  No,  sir. 

!•  Did  you  see  Herold  again  ? 
^  Tea,  sir. 
!•  Where  ] 

^.  On  the  comer  of  Fourteenth  street  and  the  avenue. 
!•  State  what  he  was  doing. 

^  He  was  coming  down  the  avenue  from  Fifteenth  street.  He  was  not  riding 
r  &8t.  It  seems  he  knew  me.  I  went  up  to  him  and  demanded  the  horse. 
!•  About  what  time  was  that  ? 

^'  I  think  it  must  have  been  twelve  minutes  past  10  o'clock. 
!•  How  long  after  you  had  seen  Atzerodt  turning  up  Tenth  street  ? 
^.  I  cannot  say  how  long.  I  walked  just  as  fast  a  I  could  from  Twelfth 
et  to  Fourteenth  street.  When  I  demanded  the  horse  from  Herold  he  paid 
[ttention  to  me,  but  put  spurs  into  the  horse,  and  went  up  Fourteenth  street 
«t  as  the  horse  could  go,  I  kept  siglit  of  him  until  he  turned  east  of  F 
^t.  I  then  returned  to  the  stable,  saddled  and  bridled  a  horse,  and  started 
f  him.  I  knew  that  Atzerodt  had  to  cross  the  Navy  Yard  bridge  in  order 
et  home,  and  that  this  Herold  being  a  friend  of  his,  would  probably  go  in 
direction ;  so  I  started  in  that  direction.     When  I  got  east  of  the  Capitol 

et  a  gentleman,  who  said 

t  Bbadley.  Don't  state  what  he  said. 

^iTNKss.  I  continued  on  to  the  Navy  Yard  bridge,  when  I  was  halted  by 

puurd.     I  described  Herold 

Ij.  Bradley.  Never  mind  what  was  said. 

HTNBSS.  In  consequence  of  information  I  then  received,  I  returned  back  to 

'table. 

•  State  what  became  of  those  horses,  if  you  know. 

•  I  do  not  know  indeed.     We  have  never  got  ours  since. 

•  Will  you  describe  the  one  Herold  had,  and  then  the  other  ? 

•  The  one  that  I  hired  Herold  was  a  light-colored  roan  horse,  black  tail, 
^  legs,  and  black  mane. 

•  Large  or  small  ? 

•  About  fifteen  hands  high. 


230  TRIAL   OP  JOHN  H.   8URRATT. 

Q.  What  was  hie  make ;  was  he  compactly  built,  or  otherwise  ? 

A.  He  was  compactly  built. 

Q.  What  was  his  age  ? 

A.  About  twelve  or  thirteen  years. 

Q.  What  was  his  gait  ? 

A.  Single-foot  racker. 

Q.  As  to  his  forehead,  was  there  anything  to  mark  it  1 

A.  There  were  no  marks  at  all  about  him. 

Q.  Is  there  any  single  fact  to  mark  him  that  will  give  a  more  complete  de-- 
scription  than  you  have  ^ven  ? 

A.  No,  sir;  only  that  his  back  was  sore  from  a  lady's  saddle  being  placed  oo 
him  so  often. 

Q.  Had  ladies  been  accustomed  to  riding  him  ? 

A.  Yes,  sir. 

Q.  He  was  not,  then,  frightened  at  a  lady's  robe,  or  anything  of  that  kind  1 

A.  No,  sir. 

Q.  Now  describe  the  horse  Atzerodt  had. 

A.  He  had  a  dark  brown  horse. 

Q.  What  was  his  gait  ? 

A.  He  was  a  pacing  horse. 

Q.  Size? 

A.  Over  fifteen  hands  high. 

Q.  Was  his  action  quick  or  heavy  ? 

A.  Very  heavy. 

Q.  What  as  to  his  rapidity ;  was  he  fast  or  slow  ? 

A.  Very  slow. 

Q.  What  marks  had  he  on  him  ? 

A.  He  was  blind  in  one  eye ;  his  right  eye  was  blind. 

Q.  You  have  never  seen  him  since  ? 

A.  Yes,  Mr ;  I  saw  him  up  at  Major  General  Augur's  headquarters,  on  tbe 
comer  of  Seventeenth  and  I  streets. 

Q.  When? 

A.  I  think  it  was  upon  the  17th  of  May,  1865 ;  I  was  sent  from  the  militaiy 
commission  up  there. 

Q.  What  became  of  this  one-eyed  horse  I 

A.  I  do  not  know.     They  had  him  in  the  stable  there.     I  do  not  know  what 
has  become  of  him  since. 

Q.  You  did  not  receive  him  again  ? 

A.  No,  sir ;  he  did  not  belong  to  us. 

Q.  Whose  horse  was  it  ] 

A.  Atzerodt  brought  him  to  the  stable ;  I  do  not  know  who  was  the  owner. 

Q.  Had  you  ever  seen  that  one-eyed  horse  before  ? 

A.  No,  sir. 

Q.  When  did  he  bring  him  to  the  stable  ? 

A.  On  the  3d  of  AprU,  1865. 

Q.  You  are  sure  about  the  date  ? 

A.  Yes,  sir. 

Q.  Atzerodt  brought  him  himself? 

A.  Yes,  sir ;  and  another  gentleman  came  there  with  him. 

Q.  Who  was  the  other  gentleman  ? 

A.  I  do  not  know  who  he  was. 

Q.  Can  yon  describe  the  other  gentleman  who  came  with  him  ? 

A.  Yes,  sir,  I  can. 

Q.  Suppose  yon  do. 

A.  He  was  a  man  of  about  five  feet  seven  and  a  half,  I  think. 


J 


TRIAL  OF  JOHN   H.   SUBBATT.  231 

Q.  Of  what  age  do  jon  think  ? 

A.  Hia  age,  I  think,  was  from  thirty  to  thirty-five  years. 

Q.  Give  us  his  complexion,  and  the  color  of  his  hair. 

A.  He  bad  black  hair,  and  wore  a  heavy  black  moustache. 

Q.  Was  his  face  rough,  or  smooth  ? 

A.  Very  smooth. 

Q.  Was  his  hair  straight,  or  curly  ? 

A.  Curly — kind  of;  rather  bushy. 

Q.  What  was  his  size  ? 

A.  He  was  something  about  my  own  make. 

Q.  Did  he  seem  like  a  strong  man,  or  a  weak  one  ? 

A.  He  seemed  to  be  very  healthy-looking. 

Q.  Thm,  or  stout  ? 

A.  Thin ;  about  my  own  make. 

Q.  As  tall  as  you  ? 

A.  Yes,  sir ;  about  the  same  height,  I  think. 

John  J.  Toffev — residence  Hudson  City,  New  Jersey — sworn  and  exam- 
ined. 

By  the  District  Attorney  : 

Q.  Where  were  you  on  the  14th  of  April,  1865  ? 

A.  I  was  then  a  lieutenant  in  the  Veteran  Reserve  Corps.  I  commanded  a 
company  at  Lincoln  hospital,  which  was  doing  guard  duty. 

Q.  What  is  your  rank  ? 

A.  Second  lieutenant  4 2d  Co.,  2d  battalion.  Veteran  Reserve  Corps. 

Q.  State  the  particulars  of  what  you  did  in  connection  with  the  horse  cap- 
tured by  one  of  your  guard  on  the  suburbs  of  the  city  on  the  night  of  the  14th 
of  April,  1865. 

A.  On  the  night  of  the  14th,  or  the  morning  of  the  15th  of  April,  last — ^it 
BUght  have  been  a  little  after  one — as  I  was  going  to  the  Lincoln  hospital, 
yhen  I  am  on  duty,  I  saw  a  dark  bay  horse,  with  saddle  and  bridle  on,  stand- 
ing at  Lincoln  Branch  barracks,  about  three-quarters  of  a  mile  east  of  the  Cap- 
rtol.  The  sweat  was  pouring  off  him,  and  had  made  a  regular  puddle  on  the 
ground.  A  sentinel  at  the  hospital  had  stopped  the  horse.  I  put  a  guard  round 
U,  and  kept  it  there  until  the  cavalry  picket  was  thrown  out,  when  I  reported 
the  fact  at  the  office  of  the  picket,  and  was  requested  to  take  the  horse  down  to 
&e  headquarters  of  the  picket,  at  the  Old  Capitol  prison.  I  there  reported 
having  the  horse  to  Captain  Lord,  and  he  requested  me  to  take  it  to  General 
Augur's  headquarters.  Captain  Lansing,  of  the  13th  New  York  cavalry,  and 
myself  took  it  there,  where  the  saddle  was  taken  off,  and  the  horse  taken  charge 
<£ 

Q.  Did  you  ever  see  him  again  ? 

A.  Yes,  sir.  I  was  ordered,  at  the  trial  of  the  conspirators,  to  go  and  see  if 
1  could  recognize  the  horse  at  the  stable. 

Q-  Who  went  with  you  ? 

A.  I  went  alone,  I  think. 

Q'  Describe  the  horse. 

A.  He  was  a  very  large  bay  horse.  He  was  blind  of  one  eye,  although  I  did 
oot  notice  that  until  I  got  to  General  Augur's. 

Q.  Which  eye? 

A.  Really,  I  do  not  remember. 

H-  How  about  the  saddle  ? 

A.  The  saddle  was  a  sort  of  citizen's  saddle,    with  army  stirrups — small 

ooden  Bthrrups.    The  covering  over  the  stirrups  was  off — of  one,  I  know — I 


232  TRIAL  OP  JOHN  H.  SUERATT. 

Q.  What  time  was  it  that  70U  found  him  ? 

A.  I  cannot  tell  the  exact  time — ^between  12  and  1  o'clock,  I  think. 

Q.  Did  you  ride  him  ? 

A.  I  did. 

Q.  What  was  his  gait  ? 

A.  He  was  very  much  excited.  I  could  hardly  hold  him  in  while  goii 
General  Augur's  office.  He  appeared  a  little  lame  when  I  was  going  down, 
might  not  have  been,  however.  He  was  excited,  and  quivering  very  i 
when  I  first  got  him  from  the  guard. 

Q.  Did  you  see  him  caught  t 

A.  No,  sir. 

Q.  How  far  was  it  from  Tenth  street  where  he  was  taken  ? 

A.  It  was  about  three-quarters  of  a  mile  east  of  the  Capitol. 

The  court  here  took  a  recess  for  half  an  hour. 

AFTERNOON   SBSSfON. 

HoNORA  FiTZPATRiCK  swom  and  examined. 
By  the  Dfstrict  Attorney  : 

Q.  Be  kind  enough  to  state  to  the  jury  Whether  you  have  not  lived  id 
city  some  time,  and  whether  it  is  not  your  native  city. 

A.  It  is ;  yes,  sir. 

Q.  What  is  your  father's  first  name. 

A.  James. 

Q.  Will  you  state  to  the  jury  if  you  knew  John  Wilkes  Booth  ? 

A.  Yes,  sir. 

Q.  How  long  did  you  know  him  ? 

A.  I  do  not  know  how  long  I  was  acquainted  with  Mr.  Booth. 

Q.  Do  you  remember  when  you  first  formed  his  acquaintance,  and  who 
was? 

A.  I  met  him  at  Mrs.  Surratt's. 

Q.  Where  was  Mrs.  Surratt  living  at  that  time  ? 

A.  On  H  street,  between  Sixth  and  Seventh, 

Q.  Do  you  remember  the  number  of  the  house  ? 

A.  541. 

Q.  Do  you  remember  what  year  it  was  you  first  saw  him  there  ? 

A.  I  think  it  was  in  1865. 

Q.  You  do  not  recollect  what  month  ? 

A.  No,  sir. 

Q.  How  often  did  you  see  him  at  the  house,  to  your  recollection  ? 

A.  I  met  Mr.  Booth  there  several  times.     I  do  not  know  how  often  I  saw! 

Q.  Were  you  boarding  at  Mrs.  Surratt's  then  ? 

A.  Yes,  sir. 

Q.  How  long  had  you  been  boarding  there  ? 

A.  From  the  6th  of  October,  1864,  until  the  time  I  was  arrested. 

Q.  When  were  you  arrested  ? 

A.  I  think  it  was  some  time  in  April. 

Q.  How  long  after  the  assassination  ? 

A.  The  assassination  was  committed  Friday,  the  14tli.  I  was  arrested 
Monday  following. 

Q.  I  ask  you  if  you  knew  a  man  by  the  name  of  George  Atzerodt  ? 

A.  I  did  not  know  him  by  that  name. 

Q.  By  what  name  did  you  know  him  ? 

A.  I  knew  him  by  the  name  of  "Port  Tobacco." 

Q.  Where  did  you  see  him  ? 


TRIAL   OP   JOHN   H.   8URRATT.  233 

A.  I  met  him  at  Mrs.  Surratt's.  ^ 

Q.  About  what  time  was  it  ? 

A.  I  do  not  remember ;  he  called  there  one  afternoon. 
Q.  Do  you  recollect  what  year  it  was,  and  what  month  ? 
A.  No,  gir ;  I  do  not  remember. 

Q  How  lon^  before  the  aBaassination  was  it  that  yon  saw  this  man  ? 
A.  I  do  not  remember. 
Q  Was  it  not  the  day  or  night  previous  ? 
A.  No,  sir;  that  was  not  the  night. 
Q.  How  often  did  you  see  this  man  at  Mrs.  Surratt's  ? 
A.  I  do  not  remember  how  often  I  met  him  there. 
Q.  Did  you  see  him  there  more  than  once  ? 
A.  Yes,  sir.     I  think  I  have  seen  him  there  more  than  once. 
Q.  Do  you  remember  his  ever  spending  a  night  there  ? 
A.  I  remember  he  staid  there  one  night. 

Q.  Do  you  remember  what  night  that  was — how  long  before  the  assassina- 
tion r 

A.  I  do  not  remember,  sir. 

Q.  Gould  you  give  any  approximate  idea  of  the  time  ? 

A.  No,  sir ;  I  have  no  idea  at  all. 

Q.  Do  you  know  how  long  you  commenced  boarding  there  before  Atzerodt 
came? 

A.  No,  sir. 

Q  Did  you  know  a  man  by  the  name  of  Lewis  Payne,  whom  you  saw  before 
^"e  military  commission  ? 

A.  I  did  not  know  him  by  that  name.    I  knew  him  by  the  name  of  Mr. 
Wood. 

Q-  When  and  where  did  you  first  see  him  ? 

A.  I  met  him  at  Mrs.  Surratt's  also. 

Q-  How  often  did  you  see  him  at  Mrs.  Surratt's  ? 

A.  1  do  not  remember  seeing  him  there  "but  twice. 

Q-  With  whom  did  he  come,  and  in  what  company  did  he  come  ? 

A.  He  called  there  one  evening  by  himself. 

Q-  How  long  was  that  before  the  assassination  ? 

A.  I  think  it  was  some  time  in  March. 

Q-  Was  that  the  first  time  you  saw  him  ? 

A.  Yes,  sir. 

x-.In  what  room  did  you  first  see  him  ? 

A.  I  met  him  in  the  parlor. 

Q-  With  whom  was  he  talking  at  that  time  ? 

A.  He  was  not  conversing  with  any  one  in  particular. 

H.  Who  were  in  the  room  at  that  time  ? 

A.  Mrs.  Surratt,  her  daughter  Annie,  Miss  Holohan,  and  Mr.  Weichman. 

X-  When  was  the  next  time  you  saw  him  there  ? 

A-  I  saw  him  in  March,  also. 

X-  Did  you  never  see  him  there  afterwards  ? 

A.  No,  sir. 

X'  You  did  not  see  him  the  day  you  were  arrested  ? 

A.  I  recognized  him  at  the  office  after  I  was  taken  there. 

x«  You  did  not  see  him  at  the  house  1 

y"'  He  was  at  the  house,  but  I  did  not  recognize  him. 
_  X   When  you  got  to  the  office  you  recognized  him  as  a  man  whom  you  had 
"*«''«  the  hou8e?  ^  ^ 

^'  I  saw  Mr.  Wood,  sir. 
^'  When  you  say  Wood,  do  you  mean  Lewis  Payne,  whom  you  saw  before  the 


34  TRIAL   OF   JOHN   H.   SUBRAlx. 

A.  Yes,  sir. 

Q.  You  know  the  prisoner,  John  H.  Surratt  ? 

A.  Yes,  sir. 

Q.  Do  you  recollect  when  was  the  last  time  70U  saw  him  at  1 
April  ? 

A.  The  last  time  I  saw  Mr.  Surratt  was  two  weeks  before  the  « 

Q.  During  these  visits  by  Atzerodt  and  Payne  to  Booth,  did  yc 
the  house  ?  and  if  so,  did  you  ever  see  or  hear  them  conversing. 

A.  I  have  seen  them,  but  never  heard  them  conversing,  togetbe 

Q.  Do  you  recollect  in  the  month  of  March  of  going  to  Ford's 
if  so,  state  in  whose  company  you  went  ? 

A.  I  went  with  Mr.  Surratt,  Mr.  Wood,  and  Miss  Dean. 

Q.  State  in  what  part  of  the  theatre  you  were  seated — whether 
a  box  or  seat  in  the  orchestra. 

A.  We  occupied  a  box,  sir. 

Q.  When  you  say  Mr.  Surratt,  you  mean  John  H.  Surratt,  the 

A.  Yes,  sir. 

Q.  And  when  you  say  Mr.  Wood  you  mean  Lewis  Payne  ? 

A.  Yes,  sir. 

Q.  While  your  party  was  in  the  box,  did  you  see  J.  Wilkes  ] 
state  what  he  did. 

A.  Mr.  Booth  came  there  and  spoke  to  Mr.  Surratt.     They  botl 
side  the  box,  and  stood  there  at  the  door. 

Q.  You  mean  spoke  to  the  prisoner  ? 

A.  Yes,  sir. 

Q.  State  if  any  one  else  joined  them  while  they  were  standing 

A.  Mr.  Wood. 

Q.  Lewis  Payne,  you  mean  t 

A.  Yes,  sir. 

Q.  How  long  were  these  three  talking  together  ? 

A.  They  remained  there  a  few  mitTtites. 

Q.  Could  you  hear  what  they  said  ? 

A.  No,  sir ;  I  was  not  paying  attention  ;  they  were  conversi 

Q.  State,  if  you  please,  where  that  box  was — in  what  part  ( 

A.  I  think  it  was  au  upper  box.     I  do  not  remember  which  8 
it  was  on. 

Q.  In  what  part  of  the  play  was  this  conversation — in  t 
the  close  1 

A.  It  was  near  the  last  part. 

Q.  After  they  separated,  which  way  did  they  go,  and  w 
party  go  ? 

A.  We  returned  to  Mrs.  Surratt *s  house. 

Q.  Which  way  did  Booth  go  : 

A.  I  don't  know,  sir. 

Q.  Which  way  did  Wood  or  Payne  go  ? 

A.  I  don't  know,  sir.     I  returned  to  my  room.     I  did 
that  night. 

Q.  l)id  Wood  go  back  to  Mrs.  Surratt's  that  night  ? 

A.  He  came  up  in  the  carriage  with  us.     I  do  notkno' 
there  or  not. 

Q.  Did  you  continue  in  the  city,  or  did  you  go  away 

A.  I  went  to  Baltimore  the  next  mornir.g. 

Q.  How  long  did  you  remain  in  Baltimore  ? 
^  -«mained  in  Baltimore  a  week. 

"Korft  this  man  Wood  or  Payne  v 


TRIAL  OF  JOHN  H.  SURRATT,  235 

Q.  Do  you  know  whether  he  called  at  the  Hemdon  House  in  this  city  1 

A.  Yes,  sir. 

Q.  Where  is  that  ? 

A.  I  do  not  know  what  street  it  is  on. 

Q.  I  allude  to  the  Herndon  House  corner  of  ninth  and  F ;  you  know  the 
hoose  ? 

A.  I  know  the  house,  but  I  do  not  know  what  street  it  is  on. 

Q.  Do  you  recollect  passing  bj  that  house  some  time  in  the  mouth  of  March, 
fibortly  before  the  assassination  of  ^  the  President,  in  company  with  Mrs.  Surratt 
and  others  ? 

A.  I  remember  passing  with  Mrs.  Surratt ;  I  do  not  know  what  month  it 
was, 

Q.  Who  were  in  company  with  you  and  Mrs.  Surratt  at  that  time  ? 

A.  Mrs.  Surratt,  Mr.  Weichman,  and  Miss  Jenkins. 

Q.  When  you  got  to  the  Hemdon  House,  state  what  Mrs.  Surratt  did  and 
what  the  rest  of  the  party  did  ? 

A.  Mrs.  Surratt  went  in,  the  others  of  us  walked  up  the  street  a  little  ways. 

Q.  Did  you  wait  for  her  up  there  ? 

A.  Yes,  sir. 

Q.  How  long  did  you  wait  for  her  ? 

A.  Only  a  few  minutes  there. 

Q.  Where  had  you  been  coming  from  ? 

A.  Frcffo  St.  Patrick's  church,  on  F  street. 

Q.  What  day  of  the  week  was  it  ? 

A.  I  don't  remember,  sir. 

Q.  Did  Mrs.  Surratt  tell  you  or  any  of  the  party,  to  your  knowledge,  while 
you  vere  going  in  that  direction,  that  she  intended  going  into  the  houae  ? 

A.  No,  sir ;  I  did  not  know  she  was  going  there  until  she  stopped. 

Q«  Did  you  or  any  of  tlie  party  ask  her  what  she  went  there  lor  ? 

A.  No,  sir. 

Q«  Did  she  state  to  you  afterwards  what  she  went  in  there  for  ? 

A.  No,  sir  ;  I  do  not  remember  asking  her. 

Q.  Did  you  ever  hear  it  spoken  of  afterwards  I 

A.  No,  sir. 

Q.  Do  you  know  how  long  she  staid  there  ? 

A.  She  remained  there  a  few  minutes. 

Q*  After  Mrs.  Surratt  had  been  in  the  house  did  she  come  up  and  join  the 
Pmy? 

A.  Yes,  sir. 

H'  Where  did  you  then  go  ? 

A.  We  returned  to  Mrs.  Surratt's  house  on  H  street. 
Q-  Where  was  John  at  that  time  ? 
j^'  I  don't  know. 
^     Q.  How  long  after  that  was  it  before  you  saw  Wood  or  Payne  at  Mrs. 
°'*^att'8.     Did  you  not  see  him  the  next  day  ? 
^  No,  sir. 

H'  How  long  was  it  before  you  did  see  him  ? 
^  I  do  not  remember  how  long  after  that. 

By  Mr.  PiBftREPONT : 
J-  Do  you  remember  John  Surratt  going  to  New  York. 
^'  No,  sir ;  I  do  not  remember  his  going. 

X.  Have  you  any  memory  of  his  going  to  New  York  during  the  year  1865 
^y^ytime? 
^  No,  sir. 
X-  Do  you  remember  hearing  him  say  anything  about  it  at  any  time  } 


236  TRIAL   OF   JOHN   H.    SURRATT. 

George  F.  Chapin  sworn  and  examined. 
By  Mr.  Pierrepont: 

Q.  State  your  residence  and  occupation. 

A.  I  live  in  Stockbridge,  Vermont,  and  I  am  a  farmer. 

Q.  How  long  have  you  lived  in  that  place? 

A.  Since  a  year  ago  last  February, 

Q.  Have  you  at  any  time  been  in  Burlington,  Vermont  ? 

A.  I  moved  from  there  in  February,  1866. 

Q.  In  the  month  of  April,  186/5,  where  were  yon? 

A.  I  was  in  Burlington  most  of  the  time — not  all  of  the  time. 

Q.  What  day  near  the  middle  of  April  were  you  in  Burlington  ? 

A.  I  left  Burlington  on  Friday  evening.  I  have  forgotten  the  day( 
mouth.  I  was  on  my  way  to  New  Haven,  Connecticut,  with  some  recrnil 
stragglers  for  Grapevine  Point.  I  left  there  on  Friday  evening ;  I  have  f 
ten  the  day  of  the  month. 

Q.  Can  you  fix  the  day  with  reference  to  the  assassination  ? 

A.  It  was  previous  to  it,  that  is,  it  was  previous  to  iwhen  I  had  heaid 
I  heard  of  it  when  on  my  way  down,  at  Springfield,  Massachusetts. 

Q    When  did  you  go  back  ? 

A.  I  went  back  on  what  they  called  the  3.15  train  from  New  Haven,  M( 
I  think  the  train  left  New  Haven  at  3.15. 

Q.  State  whether  this  was  before  or  after  the  assassination.  • 

A.  This  was  after  the  assassination. 

Q.  State  whether  it  was  the  Monday  immediately  following  the  assassii 
or  otherwise. 

A.  It  was  the  next  Monday  after  the  assassination. 

Q.  You  know,  do  you  not,  on  what  day  of  the  week  the  assassination 

A.  It  was  on  Friday  of  the  previous  week. 

H.  When  you  got  back  to  Burlington  did  you  see  a  witness  who  has  h 
the  i^tand,  Charles  Blinn  I 

A.  Not  immediately.     I  did  not  go  to  Burlington  that  day. 

Q.  When  did  you  see  Charles  Blinn,  after  your  return  from  New  Hav» 

A.  I  should  judge  it  was  on  Wednesday  evening.  I  think  that  was  tl 
time. 

Q.  Where  did  you  see  him  ? 

A.  At  the  Central  depot  in  BurlingtoiL 

Q.  Will  you  state  whether  you  there  received  anything  from  him  tha' 
noon  ? 

A.  If  I  may  be  allowed^  I  will  explain  why  1  saw  him  on  that  occasi 
was  not  in  the  habit  of  speaking  to  him  usually ;  but  on  my  way  from 
Junction 

Mr.  Brai>lky.  You  must  not  state  your  conversations  with  Blinn. 

Q.  l>id  vou  see  him? 

A.  I  did. 

Q.  Now  tell  us  what  occurred  ? 

A.  Ho  showed  me  an  article :  I  looked  at  it.  and  told  him  I  would 
have  it. 

Q.  What  was  the  article  ? 

A.  A  pocket  hamlkerchit^f. 

Q,  How  was  it  marked  ? 

A.  It  was  niarkiHl  •John  H.  Surratt;"  I  think,  "No.  2.'* 

Q.  Haw  you  it  before  you  now  ? 

A.  1  should  not  riHH^irnizo  it,  from  the  way  it  Kwked  then,  because  thee 
very  dirty.     1  think  it  is  the  same  handkerchief.     It  looks  like  it. 

Q.  Have  you  seen  Mr.  Blinn  here  ? 


TRIAL  OP  JOHN  H.  SURRATT.  237 

A.  I  have  not.     He  left  before  I  arrived. 

Q.  What  mark  is  there  on  the  handkerchief  you  have  before  you? 

A.  It  is  marked  "  John  H.  Sarratt,  2." 
Crods-examined  by  Mr.  Bradlby  : 

Q.  To  whom  did  you  give  that  handkerchief? 

A.  I  gave  it  to  George  A.  Gurnett. 

Q.  Who  is  he  ? 

A,  Gurnett,  he  called  himself  to  me.  He  called  himself  one  of  Baker's  detec- 
tives.  He  came  to  Burlington. 

Q.  And  you  think  that  was  on  Wednesday  ? 

A,  I  gave  it  to  him  the  next  week ;  Tuesday,  I  think  it  was. 

Q.  Where  did  you  see  him  ? 

A.  In  Burlington. 

Q.  Were  you  a  detective  1 

A.  I  was. 

Q.  In  Baker's  employ  ? 

A.  No,  sir ;  I  do  not  know  whether  I  was  properly  a  detective.  My  appoint- 
ment came  from  Captain  Gleason,  provost  marshal  of  the  3d  district  of  Vermont. 

Q.  Did  you  report  at  all  to  Major  Giout,  coniinanding  at  3t.  Albans  ? 

A.  I  did  not ;  I  had  nothing  to  do  with  him. 

Q.  Do  you  know  where  Gurnett  is  now  ? 

A.  1  dd  not ;  I  have  never  seen  him  since  that  day. 

Q.  You  left  Burlington  to  go  to  New  Haven  on  Friday  evening  ? 

A.  Yes,  sir,  by  the  8  o'clock  train. 

Q-  And  at  Springfield  you  heard  of  the  assassination ;  what  time  did  the  train 
"rive  at  Springfield  ? 

A.  About  7  o'clock ;  sometimes  later. 

Q«  What  time  that  morning  ? 

A.  I  could  not  tell  you  the  exact  time.  I  had  to  wait  there  one  train  before 
I  vent  on  to  New  Haven  with  my  recruits.  If  we  met  the  other  train  from 
Bwton  we  could  go  right  on  without  stopping  five  min|ites ;  but  if  not,  we  had  to  stop 
<>ver  until  2  o'clock.     I  arrived  there  in  the  early  part  of  the  afternoon. 

Q-  When  was  it  that  you  received  that  handkerchief  from  Blinn  ? 

A.  I  did  not  receive  it  direct  from  Blinn  until  the  day  I  gave  it  to  George 
"•urnett,  on  Tuesday,  the  25th  of  April.     I  had  previously  seen  the  handker- 

Q-  When  did  you  first  see  it  1 
A  On  the  Wednesday  evening  previous. 
0-  What  enables  you  to  fix  that  date  ? 

A  On  Tuesday  morning  when  I  returned  from  New  Haven  I  went  directly 
home.  I  lived  two  miles  out  of  Burlington.  Then  about  the  middle  of  the  day, 
fnesday,  I  drove  over  with  my  team  and  reported  to  the  office  and  returned 
^^ediately  back.  My  wife  was  very  sick.  I  staid  there  until  Wednes- 
j7'  On  Wednesday  I  went  down  to  Essex  Junction  and  left  my  team,  and  went 
^^  in  the  Wednesday  evening  train. 
V  And  you  think  it  was  on  that  Wednesday  you  first  saw  the  handkerchief? 
j^  Yes,  sir. 

X'  Did  you  leave  Burlington  then,  or  remain  there  ? 
A-  I  was  at  Burlington  every  day,  more  or  less. 

%•  Between  the  first  time  you  saw  the  handkerchief  and  the  time  you  gave  it 
^  ^ttrnett,  how  many  times  were  you  at  Burlington  1 
.  ,  A.  I  tii^nt  I  did  not  leave  there  again  until  Friday,  when,  I  think,  I  was  at 
f  rJJJ*  Od  Saturday  I  returned  to  Burlington,  and  left  again  on  Sunday.  I 
\  PjJ^  not  say  I  did  not  leave  Burlington.  I  went  home  Thursday  and  etaid  at 
i  aoBie  Tharsday  night,  if  I  remember  right. 


238  TRIAL   OF   JOHN   H.    SURRATT. 

Q.  Now,  sir,  was  it  not  on  Saturday  morning  that  you  first  heard  of  and 
that  handkerchief? 

A.  I  think  it  was  not. 

Q.  Is  there  anything  in  your  memory  which  will  enable  you  to  fix  vhe 
it  was  Wednesday  or  Saturday  morning,  or  some  time  during  the  day  oh  Si 
day  ? 

A.  I  could  not  have  seen  him  during  the  day  on  Saturday,  or  any  other  i 
because  he  was  away  from  Burlington  during  the  day. 

Q.  He  was  not  there  on  Saturday  afternoon? 

A.  He  came  in  Saturday  evening  to  the  depot. 

Q.  Before  sunset  ? 

A.  I  don't  know  what  time  in  the  evening.  He  came  in  the  evening  and 
early  the  next  morning. 

Q.  What  fact  is  there  to  fix  it  in  your  mind  that  you  saw  that  handken 
on  Wednesday  evening  instead  of  Saturday  evening  ? 

A.  I  do  not  know  that  there  is  anything  that  I  could  tell  to  you.  I 
boarding  at  the  hotel.  Mr.  Blinn  said  he  would  take  it  home  for  his  motbi 
wash  it.  I  called  for  it  once  after  that,  and  he  said  his  mother  had  been  ai 
that  his  brother  had  died  ;  that  she  had  not  washed  it,  but  would  do  so. 

Q.  Can  you  fix  the  day  when  he  said  his  brother  died  ? 

A.  I  cannot ;  and  I  cannot  tell  you  whether  it  was  Friday  evening  or  Satni 
evening  that  he  made  this  excuse. 

Q.  Did  not  he  tell  you  that  his  brother  had  died  and  his  mother  was  ab 
attending  him  on  Thursday  evening ;  and  did  he  not  tell  you  this  on  Satu« 

A.  He  did  not  tell  me  the  particulars  at  all. 

Q.  Did  you  see  any  more  than  one  handkerchief? 

A.  I  ihink  I  did  not.  I 

Q.  Did  he  not  show  you  two  handkerchiefs,  one  marked  "  John  H.  Somtt 
and  one  not  marked,  and  both  very  dirty  ? 

A.  If  he  did,  I  took  very  little  notice  of  it.  It  was  nothing  I  paid  parti( 
attention  to. 

Q.  Did  you  not  tell  Gurneit  there  were  two  handkerchiefs  ? 

A.  I  do  not  think  I  did. 

Q.  Did  you  not  tell  Gurnett  that  you  got  a  handkerchief  on  Saturday  eve 
marked  John  II.  Surratt  ? 

A.  0,  no,  sir ;  because  I  did  not  got  it  there. 

Q.  Did  not  you  tell  him  that  you  first  saw  it  on  Saturday  afternoon  ? 

A.  No,  sir ;  I  did  not  tell  him  any  such  thing.  I  could  not  have  told 
that,  for  I  could  not  have  seen  him  at  any  time  during  the  middle  of  the  d 

Q.  I  did  not  say  any  particular  time ;  I  mean  in  the  afternoon  of  Satui 

A.  I  do  not  think  1  told  him  anything  of  the  kind. 

Q.  Did  you  tell  him  when  yon  first  saw  it  ? 

A.  I  probably  did.     I  could  not  say. 

Q.  You  do  not  recollect  telling  him  that  Blinn  showed  it  to  you  on  Sat 
afternoon,  and  that  there  were  two  handkerchiefs  together,  both  very  dirtj 
marked  and  one  not  marked  ? 

A.  I  have  no  recollection  of  anything  of  the  kind. 

Q.  Do  you  mean  to  say  you  did  not  tell  him  ? 

A.  I  do  not  mean  to  say  I  did  not  tell  him,  for  I  cannot  remember  ever] 
I  said  two  years  ago. 

Q.  Did  you  make  any  statement  to  anybody  else  except  Gurnett  at  th 
in  regard  to  that  handkerchief? 

A.  No,  I  think  not ;  I  do  not  think  I  ever  made  a  statement  in  regan 
from  that  time  until  last  Saturday  night. 

Q.  Did  yuu  make  any  report  of  it  as  a  detective  ? 


TRIAL   OF   JOHN   H.   SURRATT.  239 

A.  I  presume  I  might  at  the  office  have  reported  it  verbally  to  Captain  Gleasou' 
at  the  provost  marshars  office  ;  I  do  not  know. 

Q.  Where  is  Captain  Gleason  now  ? 

A.  At  Richmond,  Vermont,  I  presume  ;  I  have  not  seen  him  lately. 

Q.  What  is  his  first  name  ? 

A.  RoUa,  I  think ;  I  do  not  know  that  he  has  a  middle  name. 

Q.  You  remember  seeing  Captain  Gleason  at  that  time  ? 

A.  I  saw  him  usually  every  day.  I  was  in  his  office  when  not  on  duty  else- 
where. 

Q.  You  have  no  recollection  of  reporting  this  fact  to  him  particularly  ? 

A.  I  do  not  think  I  did.     He  may  have  heard  of  it  before  I  did. 

Q.  Did  not  you  report  the  fact  to  him  that  yoa  had  given  it  to  one  of  Colonel 
Baker's  detectives  ? 

A.  No, sir;  I  do  not  think  I  did;  the  detective  came  there  after  me.  Captain 
Gleason  showed  him  where  I  was,  and  he  and  I  went  away  together. 

Q.  You  and  the  detective? 

A.  Yes,  sir. 

Q.  Which  way  did  you  go  ? 

A.  We  went  to  Winooski  Falls,  two  miles  nearly.  It  is  in  Burlington,  near 
the  village. 

Q.  Bid  you  go  there  in  reference  to  this  handkerchief  ? 

A.  Yes,  sir. 

Q.  Did  you  go  there  in  pursuit  of  any  particular  person  ? 

A.  I  went  in  pursuit  of  Charles  Blinn.  * 

Q-  When  you  found  Charles  Blinn  did  Gurnett  take  down  his  statement  in 
writing? 

A»  I  do  not  think  he  did ;  I  am  not  sure.  He  may  have  done  it.  I  did  not 
we  him  do  it  at  that  time. 

Q.  And  you  think  that  was  the  25th  of  April  ? 

A.  I  think  that  was  Tuesday,  the  25th  of  April.  Why  I  feel  so  confident  is 
from  minutes  I  took  at  the  time  from  day  to  day  of  what  I  was  doing. 

Q-  Please  turn  to  the  25th  of  April  and  see  if  you  have  a  minute  that  you 
received  the  handkerchief  on  that  day  ? 

A.  I  do  not  think  I  have  a  minute  of  that  kind.  It  is  merely  a  minute  of 
^"ig  with  Gumett,  and  reads  as  follows : 

"Tuesday,  25th  of  April. 

George  A.  Gumett,  Baker's  detective  from  Washington.  Went  to  Platts- 
»"rg  ou  boat  Canada.     Came  back  on  United  States." 

.  Q-  Now  turn  to  the  23d  and  see  what  entry  you  have  there,  if  anything 
^  reference  to  this  matter. 

^'  Nothing  in  reference  to  this  matter. 

By  Mr.  Merrick: 

V  You  say  you  went  from  Burlington  to  Plattsburg  on  the  boat  Canada,  and 
*•»«  back  on  the  United  States;  are  there  two  boats  ? 

A,  Certainly,  there  were  more  than  two  boats  at  that  time.  One  started  from 
*^^e'8  Point,  going  south,  and  the  other  from  White  Hall,  going  north.  Each 
^  from  the  north  and  south  touched  at  Plattsburg.  We  went  down  on  one 
*f^d  came  up  on  the  other.  These  were  the  two  night-line  boats,  so  called  at 
tkUtime. 

Q-  The  Canada  left  White  Hall  on  the  night  of  the  25th,  and  the  United 
°^te8  left  Rouse's  Point  the  night  of  the  25th  ? 

y^*  Yes,  air,  at  the  same  time ;  or  the  boat  at  Rouse's  Point  may  possibly  have 
*^later,  because  they  went  further  north  than  half  way. 

Q-  Bid  these  boats  run  both  on  the  nights  of  Saturday  and  Sunday  1 


240  TRIAL   OF  JOHN  H.   SURRATT. 

A.  I  gbould  judge  the  boat  startiug  south  and  that  going  north  on  Saturdi 
night  would  arrive  on  Sunday  morning  and  lie  over  till  Monday  night. 

Q.  I  understand  the  only  circumstance  that  enables  you  to  fix  these  dates 
that  you  called  on  Blinn  for  this  handkerchief,  and  that  he  told  you  his  moA 
had  not  washed  it  t 

A.  Yes,  and  the  reason  was  on  account  of  the  sickness  of  his  brother. 

Q.  You  heard  of  the  assassination  on  Saturday  morning  at  Springfield,  Mj 
sachusetts.  When  did  you  first  hear  the  names  of  any  persons  charged  wi 
complicity  in  that  assassination  ? 

A.  That  I  could  not  tell  you.     I  could  not  fix  any  particular  time. 

Q.  Did  not  you  hear  the  name  of  Booth  connected  with  the  assassination 
the  same  time  you  heard  of  the  assassination  ? 

A.  Very  likely  I  did.     I  could  not  tell  you  positively  in  regard  to  that 
did  not  hear  it,  I  think,  at  that  moment.     I  was  just  stepping  off  the  train  wb 
the  conductor  said  "  Ghapin,  our  President  is  murdered."     Said  I,  No?  you  i 
fooling."    He  said,  **  No,  it  is  so,"  and  then  turned  and  went  off  about  his  bosina 
That  was  the  first  I  heard  of  it. 

Q.  Do  you  recollect  when  you  first  heard  of  John  H.  Surratt  as  being  co 
nected  with  the  assassination  ? 

A.  I  have  no  recollection  of  hearing  in  regard  to  that  any  particular  dma 
probably  heard  it  before  I  came  back  from  New  Haven,  and  I  may  have  heu 
it  at  New  Haven.     There  was  great  excitement  in  New  Haven  at  that  time. 

'  Q.  You  heard  it  before  Blinn  told  you  he  had  the  handkerchief,  didn't  yon 

A*  I  probably  did.     I  presume  I  must  have  heard  it 

Q.  And  that  was  the  reason  you  wanted  to  have  that  handkerchief? 

A.  There  could  be  no  other  reason. 

Q.  And  you  think  that  was  on  Wednesday  evening,  when  you  came  dowB  o 
the  afternoon  train  ?  Did  you  not  also  come  down  on  the  afternoon  train  on  Si 
urday  ? 

A.  No.  I  was  in  Burlington  on  Saturday,  and  left  with  my  own  teamo 
Sunday  ? 

Q.  You  were  then  a  detective  ? 

A.  I  was  appointed  as  a  special.  As  I  understand  the  law,  it  allows  tw 
deputy  provost  marshals  in  the  district.  Captain  Gleason  had  his  complemeD 
of  provost  marshals,  and  he  gave  me  an  appointment  as  special.  I  was  in  tb 
office  most;  of  the  time  when  I  was  not  away  on  business.  I  was  sent  to  Nei 
Haven  with  recruits  and  deserters,  and  went  wherever  I  was  ordered. 

By  Mr.  Tirrrepont: 
Q.  Please  turn  "to  Wednesday  and  state  what  date  it  was. 
A.  The  19th  of  April. 

By  Mr.  Merrick: 
Q.  Did  you  go  any  further  in  pursuit  of  any  matters  connected  with  th«i 
handkerchief  than  simply  to  go  and  see  Blinn  ? 

A.  I  did  nothing  further,  only  to  deliver  it  to  Gurnett. 

Benjamin  W.  Vaxderpoel,  sworn  and  examined. 

By  Mr.  Pierrkpont: 
Q.  State  your  age  and  residence. 

A.  ]  am  in  my  2l>th  year.  I  live  in  the  city  of  New  York;  was  boim 
raised  there. 

Q.  What  was  vour  father's  name  ? 

A.  Jacob  Vandorpoel. 

Q.  Will  3'ou  state  where  you  were  in  the  commencement  of  the  war  ? 

A.  I  was  an  attorney  and  counsellor  at  law  in  the  city  of  New  York. 

Q.  Who  were  you  with  I 


TRIAL   OF  JOHN   H.    8URBATT.  .241 

A.  Brown,  Hall  &  Vanderpoel. 

Q.  You  were  a  connection  of  the  Vanderpoel  of  that  firm  1 

A.  Yes,  sir. 

Q.  Wliat  is  your  occupation  in  New  York  now  1 

A.  An  attorney  at  law  with  Chauncey  Schaffer,  243  Broadway, 

Q.  Where  did  you  go  in  the  commencement  of  the  war  1 

A.  Into  the  army,  in  the  59th  New  York  volunteers. 

Q.  What  position  did  you  hold  in  the  army  ? 

A.  I  was  fii*8t  lieutenant  of  company  G  in  that  regiment. 

Q.  Were  you  captured  by  the  enemy  ? 

A.  I  was  captured  at  Ream's  station,  Virginia,  on  the  24th  of  August,  1864. 

Q.  Where  were  you  taken  after  you  were  captured  ? 

A.  I  was  taken  first  to  Richmond,  from  there  to  Salisbury,  North  Carolina, 
then  to  Danville,  and  from  Danville  back  to  Richmond  again,  when  I  was 
paroled  in  the  latter  part  of  February,  1865. 

Q.  Before  you  went  to  the  war  did  you  know  J.  Wilkes  Booth  ? 

A.  Yes,  sir. 

Q.  How  happened  you  to  know  him  ? 

A  He  used  to  visit  a  club  that  I  belonged  to  in  the  city  of  New  York,  next 
to  Laura  Keen's  theatre. 

Q.  What  was  the  club? 

A.  The  Lone  Star  Club. 

Q-  Do  you  remember  the  day  of  the  assassination? 

A.  Very  well,  sir. 

Q.  Where  were  you? 

A.  I  was  in  the  city  of  Washington. 

Q«  How  many  days  before  the  assassination  were  you  here  ? 

A.  Three  days  before. 

Q'  flow  many  days  after  ? 

A.  About  two  or  three  days  after. 

Q«  Did  you  see  John  Wilkes  Booth  on  the  14th  of  April  ? 

A.  I  did. 

Q.  Did  you  speak  with  him  ? 

^  Yes,  sir. 

Q-  Did  he  know  you  well,  and  you  him  ? 
,  ^  Yes,  sir — that  is,  he  called  me  major;  that  is  the  title  he  generally  ad- 
"^aed  me  by. 

J-  Did  you  see  him  more  than  once  on  that  day  ? 

^  I  saw  him  at  least  three  times. 

J'  Where  did  you  first  see  him  ? 
^  It  was  just  above  Willards*  on  the  sidewalk. 
J-  Where  did  you  next  see  him? 

t^  The  next  place  I  saw  him  was  between  11th  and  12th,  or  between  10th 
T|^Mlth,  on  the  left-hand  side  of  Pennsylvania  avenue,  going  ^*om  here  to  the 
5'^  House. 

^  State  whether  you  saw  this  prisoner  on  that  day  ? 
jT^^^  prisoner  made  to  stand  up.) 

Q    I  did  see  him  at  this  place  I  speak  of  on  the  avenue. 
J*  Who  did  you  see  him  with  ? 

Q-  With  Wilkes  Booth,  and  two  or  three  others  in  the  party. 
y*  Tell  the  jury  what  they  were  doing. 

J^  1*hey  were  sitting  around  a  round  table,  with  glasses  on  it.     This  is  all  I 
^*^ect  now. 

1^2^*  Tell  the  jury  the  circumstances  of  your  seeing  him  that  day  and  what 
T  ^ere  doing. 
"^  I  had  been  up  to  the  paymaster's  department  on  some  business  relating 


242  TRIAL   OF   JOHN   H,    SURRATT. 

to  my  accoiints.     In  coming  out,  I  came  down  the  avenue  on  the  opposil 
from  the  place  I  have  described,  and  heai-ing  music,  I  went  across 
what  was  going  on  at  this  place.     As  I  went  up  stairs  I  think  there  was  a  n 
dancing  a  sort  of  ballet  dance.     There  was  a  stage  or  something  of  the  li 
the  back  part  of  the  room. 

Q.  How  was  the  room  as  to  there  being  people  in  it  ? 

A.  I  should  say  there  were  50  or  60  people  there. 

Q.  Describe  the  table  where  Booth  and  Surratt  sat. 

A.  It  was  a  round  table,  as  near  as  I  can  remember,  probably  four  orfii 
across. 

Q.  What  were  they  doing  ? 

A.  Apparently,  talking. 

Q.  At  what  time  in  the  day  was  it  ? 

A.  It  was  in  the  afternoon. 

Q.  Was  the  room  light  ? 

A.  Yes,  sir. 

Q.  Did  you  see  them  plainly  ? 

A.  0,  very  plainly. 

Q.  Were  you  near  them  ] 

A.  I  was  about  as  far  from  them  as  I  am  from  you  at  the  present  time,  (t 
or  fifteen  feet.) 

Q.  Did  you  see  them  clearly  ? 

A.  Yes,  sir. 

Q.  Could  there  be  any  mistake  1 

A.  There  is  no  mistake  that  I  can  see. 

Gross-examined : 

By  Mb.  Bradley  : 

Q.  Did  you  speak  to  them  in  this  place  ? 

A.  No,  sir,  I  did  not.     They  were  in  conversation  with  themselves. 

Q.  Booth  did  not  address  you  as  major  at  that  time  ? 

A.  Not  at  that  time. 

Q.  What  time  in  the  day  did  you  make  out  it  was  ? 

A.  It  is  hard  for  me  to  say  exactly  the  time.  I  went  to  the  payn 
department  about  1  o'clock,  and  was  there  half  an  hour  or  an  hour — I  don'l 
how  long.  I  transacted  my  business  and  came  down  the  avenue  and  we 
this  place. 

Q.  It  was  not  dinner  time  ? 

A.  I  hardly  know  what  you  call  dinner  time.     I  had  not  had  any  dinn 

Q.  Did  you  notice  whether  these  gentlemen  had  anything  to  drink  tl 
not? 

A.  I  did  not ;  I  merely,  as  I  came  into  the  place,  glanced  at  the  table 
they  were  sitting  and  talking  the  same  as  anybody  else  would  do  while 
down  there. 

Q.  Did  you  take  anything  to  drink  while  there  ? 

A.  I  don't  recollect  that. 

Q.  Did  you  ever  see  Surratt  before  ? 

A.  I  cannot  say  that  I  did. 

Q.  Did  you  ever  see  him  since  ? 

A.  Not  until  this  morning. 

Q.  You  have  examined  him  very  carefully  this  morning  ? 

A.  I  noticed  one  alteration.  The  goatee  he  has  on  now  he  did  not  h 
then. 

Q.  You  have  examined  him  carefully,  and  you  have  no  sort  of  doubt 
the  man  ? 

A.  I  have  no  sort  of  doubt  he  was  the  man  I  saw  in  that  place. 


TRUL   OP   JOHN   H.    8UREATT.  243 

Q.  Toa  saw  him  for  how  long  a  time  ? 

A.  It  may  have  been  five  or  it  may  have  been  ten  minutes. 

Q.  Then  you  stood  five  or  ten  minutes  looking  at  the  group  of  people  around 
that  table? 

A.  I  did  not  say  that. 

Q.  Then  you  did  not  stand  there  looking  particularly  at  them  ? 

A.  Not  more  particularly  than  at  any  others  that  I  know  of.  I  noticed  a 
man  I  knew  and  some  people  in  his  company. 

Q.  Then  you  just  glanced  around  on  the  party  and  saw  Wilkes  Booth  and 
three  strangers  with  him  ? 

A  I  looked,  not  expecting  to  find  him,  and  said  to  myself  "  Halloo,  he's  got 
np  here,"  and  looked  at  him  and  saw  two  or  three  in  his  company. 

Q.  And  you  have  daguerreotype d  that  look  in  your  mind's  eye  ? 

A.  I  have.  . 

Q.  Two  or  more  together  ] 

A  Two  or  more  together. 

Q.  And  you  therefore  undertake  to  swear  positively  to  the  man  you  had  that 
glimpse  of] 

A.  I  undertake  to  swear  to  what  I  believe. 

Q-  You  are  as  certain  as  that  you  see  me  ? 

A.  As  certain  as  that  I  see  you. 

Q.  Just  as  confident  that  you  see  the  man  you  had  that  glimpse  of  two  years 
*go  as  that  you  are  looking  at  me  now  ? 

A.  Ju3t  as  confident. 

Q.  AVho  else  was  at  the  table  ? 

A.  Two  or  three  others  besides  Booth  and  this  man. 

Q.  Can  you  describe  them  ? 

A.  I  know  one  man  was  a  thick-set,  dark-complectioned  man ;  looked  as  if  he 
was  a  Frenchman.  He  had  a  foreign  appearance  about  him — ^that  was  all  I 
noticed. 

Q.  Yon  think  you  would  recollect  that  man  if  you  saw  him  ? 

A.  I  think  I  could. 

Q-  The  other  two  you  did  not  notice  so  particularly  ] 

A.  You  will  understand  that  with  men  sitting  around  a  table  I  certainly  could 
^jji^i  a  full  view  of  every  one  unless  I  walked  right  round  the  table.  I  had 
*  wil  view  of  Booth  and  this  man,  who  were  sitting  alongside  of  each  other, 
■^«  that  is  the  way  I  recognized  him  so  particularly. 

J'  This  was  between  1  and  2  o'clock? 

A.  It  was  some  time  in  the  afternoon ;  it  may  have  been  after  3  o'clock. 

J*  Can  you  describe  how  this  gentleman  was  dressed  at  the  time  ] 
A.  X  cannot  describe  hi.^  dress.     I  am  a  very  poor  observer  about  dress ;  I 
o^^i^lly  observe  a  person's  features,  but  not  his  clothes. 
J*  Can  you  tell  whether  he  was  dressed  in  light  or  black  clothes  ? 
^-  That  I  cannot  tell. 
J'  l)id  they  have  their  hats  on  or  not  ? 
^*  Some  did  and  some  did  not. 

2'  1^0  you  remember  about  his  hair,  whether  it  was  short  or  long  ? 
J7'  Ibat  I  do  not  recollect.     I  think  his  hair  was  very  nearly  as  it  is  now, 
^*p8  a  little  longer. 
2'   You  remember  he  had  no  goatee  ? 
Q*   1  think  not ;  it  was  very  light  if  he  had  any. 
2"  I  want  to  know  whether  that  man  had  a  goatee  at  that  time  or  not  ? 
Q*   I  do  not  think  he  had. 
^*  Yon  think  he  had  a  moustache  ? 

o  ^«- 

^*  Tou  did  not  hear  them  conversing  at  all  ? 


244  TRIAL   OF   JOHN   H.   SURBATT. 

A.  Not  close ;  with  fifty  or  sixty  persons  in  the  room,  all  talking,  and 
music,  it  would  be  impossible  for  me  to  hear  conversation. 

Q.  Did  you  hear  their  voices  at  all  ? 

A.  No ;  I  could  not  even  say  that,  with  all  the  noises  going  on. 

Q.  Then  you  went  into  a  room,  saw  fifty  or  sixty  persons  sitting  around  tal 
and  a  woman  dancing  at  the  lower  end  of  the  hall.  You  recollect  certai 
about  that  ? 

A.  I  recollect  abont  that ;  it  was  a  novelty  to  me.  It  was  the  first  tin 
had  ever  been  in  the  place. 

Q.  You  remember  there  was  a  woman  dancing  ? 

A.  It  was  a  woman  or  something. 

Q.  It  was  dressed  like  a  woman  ? 

A.  It  was  dressed  like  a  woman.  ^ 

Q.  You  are  quite  distinct  about  that  ? 

A.  That  is  what  I  swear  to. 

Q.  You  are  quite  distinct  that  on  Friday,  the  day  of  the  assassination, 
went  in  there  and  saw  a  woman  dancing  at  the  lower  end  of  the  hall ;  yon 
very  clear  about  that 

A.  Yes,  sir. 

Q.  And  you  think  it  was  between  Tenth  and  Eleventh  or  Eleventh 
Twelfth  streets. 

A.  It  was  along  there ;  I  have  not  been  there  since  to  see. 

Q.  You  do  not  know  what  the  place  was  ?     Was  it  the  Metropolitan  H 

A.  Metropolitan  Hall  or  Washington  Hall,  or  something  of  that  sort,  I  a 
not  swear  positively  to  the  name. 

Q.  Who  did  you  tell  of  it  ? 

A.  I  do  not  recollect  that  I  told  anybody  of  it. 

Q.  Did  not  you  know  that  there  was  a  hot  pursuit  after  Surratt,  and 
inquiry  whether  he  was  with  Booth  or  concerned  with  Booth  on  that  day  ? 

A.  Certainly  I  do. 

Q.  And  you  did  not  tell  anybody  that  you  saw  him  and  Booth  together  t 
afternoon  ? 

A.  I  did  not,  and  for  this  reason  :  After  this  affair,  a  number  of  my  fel 
officers  who  had  been  present  with  me  in  the  city,  came  to  me  and  said,  *' V 
derpoel,  I  would  not  be  in  your  shoes  for  anything  in  the  world  ;  you  will  I 
your  commission."  Said  I,  **  What  for  ?  *'  They  said ;  "  Because  you  wereal« 
with  Booth."  I  packed  up  my  traps  and  started  for  the  army.  The  detecti 
arrested  me  just  as  I  was  getting  on  the  boat,  and  took  me  up  to  Tenth  stn 
finally  I  got  round  to  General  Augur's  office  and  explained  matters  as  well  i 
could,  and  went  back  to  the  army. 

Q.  Had  you  not  leave  of  absence  ? 

A.  Yes,  sir.  • 

Q.  Was  it  not  of  the  utmost  importance,  if  you  had  seen  Booth  and  b 
with  him  that  day,  that  you  should  have  made  it  known  ? 

A.  I  can  see  now  that  it  was ;  but  I  have  explained  what  my  motives  ^ 
then.  When  officers  jeered  at  me  and  told  me  they  would  not  be  in  my  shoes 
anything,  I  wanted  to  get  away,  and  that  was  the  reason  for  what  I  did. 

Q.  Did  you  not  know  that  if  you  had  been  in  Washington  only  two  or  tl 
days,  on  leave  of  absence  and  on  legitimate  business,  you  were  safe  here  ? 

A.  Certainly. 

Q.  And  yet  with  this  knowledge  that  there  was  a  hot  pursuit  after  Booth 
all  persons  concerned  in  this  horrible  crime,  you  locked  this  information  in ; 
own  breast  and  waited  until  now  to  disclose  it. 

A.  Self-preservation  is  the  first  law  of  nature.  I  wanted  to  take  care  of 
self  first. 


TRIAL   OF  JOHN   H.   8URRATT.  245 

Q.  Let  me  aak  you  whether  Belf-preservation  would  not  have  been  best  con- 
sulted by  giving  all  the  assistance  yon  could  in  the  arrest  of  Bootii  ] 

A.  I  do  not  know. 

Q.  Did  it  occur  to  jou  that  the  fact  of  your  departure,  after  having  been  seen 
with  Booth,  might  render  you  in  much  greater  danger  ? 

(Question  objected  to  by  district  attorney  as  calling  for  opinions  of  witness, 
and  not  facts. 

The  CorRT.  The  witness  may  answer  the  question ;  it  is  not  evidence  though.) 

A.  I  think,  in  the  view  you  put  it,  it  would  have  been  better  for  me  to  come 
out  witli  what  I  knew.  We  can  all  see  these  things  afterwards,  on  second 
thought.    Probably  I  did  wrong  in  not  coming  out  and  tilling  what  I  knew. 

Q.  When  did  you  come  out  ? 

A.  Now,  here,  to-day. 

Q.  When  before  to-day  ? 

A.  I  have  never  said  very  much  about  it. 

Q.  How  was  it  known  that  you  knew  anything  about  it  ? 

A.  I  eaw  the  trial  of  John  11.  Surratt  in  the  paper,  and  came  on  myself.  I 
WW  that  the  trial  was  progressing,  and  read  an  editorial  in  the  New  York 
Herald  about  it,  and  came  on. 

Q.  When  you  came  on  what  did  you  do  ? 

A.  I  reported  myself  to  Mr.  Carrington. 

Q.  Without  a  summons  ? 

A.  Without  a  summons. 

Q.  Now  I  understand  that  you  had  never  seen  John  H.  Surratt  before,  nor 
Bince,  80  far  as  you  can  recollect  ? 

A.  I  said  I  saw  him  that  particular  day ;  I  did  not  say  whether  I  had  seen  him 
wfore  or  since. 

Q«  How  could  you  know  it  was  John  H.  Surratt  you  saw  there,  and  come 
*fld  tell  the  district  attorney  you  saw  him  there  ? 

A.  I  could  not ;  I  came  on  here  to  see  if  one  of  the  men  I  saw  was  John  H. 
^I^^tt.  When  I  came  into  court  I  was  convinced  it  was,  and  that  is  all  I 
know  about  it. 

Q'  And  that  is  the  whole  matter  ? 

A.  That  is  the  whole  matter. 

By  Mr.  Pierrepo.nt: 

Q*  I  want  to  know  if  there  is  a  difference  in  people  in  their  capacity  of 
'^n^^mbering  faces  ? 

(Qiftstion  objected  to  as  immaterial,  unless  the  witness  is  an  expert.) 

Mr.  PiKRRBPONT.  I  am  going  to  ask  whether  he  is  an  expert  in  remembering 
wman  faces  or  not. 

The  Court.  You  can  ask  him  what  his  capacity  is  for  rememlbering  faces. 

^-  PiBRRKPONT.  I  will  ask  that  question. 

A.  I  jj^yg  very  seldom  seen  any  one  who  would  remember  faces  so  well  as  I 
^*  1  have  met  people  1  have  not  seen  in  ten  years  and  gone  up  to  them  and 
«»«ed  them  by  name. 

Y  You  may  state  whether  you  have  had  it  tested  ? 

^  Yes,  sir,  I  have. 

By  Mr.  Bradlev: 

y*  You  have  recognized  persons  yon  have  not  seen  for  ten  years  ;  did  you 
^?  recognize  a  man  you  only  had  a  glimpse  of  once  after  an  absence  of  three 
^'"^^r  years? 
.  ^  Yea,  sir ;  I  have  done  that.    I  have  recognized  people  I  have  only  been 

'^'ftpanv  with  uTinA.  filYepn.  twftnftv.  or  twftntv-five  minutes. 


^"^Pany  with  once,  fifteen,  twenty,  or  twenty -live 
Vc»  There  you  have  had  your  attention  drawn  to 


you  have  had  your  attention  drawn  to  them  by  conversing  with 


246  TRIAL   OF   JOHN   H.   SURRATT. 

them  and  seeing  their  manner.    Can  you  recollect  any  instance  in  which  y  ^ 
have  been  able  to  recollect  a  man  yon  have  seen  casually  sitting  at  a  table,  j  i^ 
to  glance  at  him,  and  not  see  them  for  two  years  afterwards  ? 
A.  Yes,  sir ;  I  have  known  occasions  of  that  kind. 

By  Mr.  Merrick  : 

Q.  Do  you  recollect  that  woman's  face  you  saw  dancing  ? 
A.  I  did  not  pay  much  attention  to  her  face ;  I  paid  much  more  attention, 
her  legs. 

Q.  Do  you  think  you  would  recognize  them  if  you  were  to  see  them  ? 
A.  I  do  not  think  I  would. 

Saturday,  June  22,  186r- 
The  Court  met  at  10  a.  m. 

Mrs.  Martha  Murray  sworn  and  examined;  residence,  Washington. 

By  the  District  Attorn ky  : 

Q.  State  where  you  live. 

A.  I  stop  now  at  the  Hemdon  House,  corner  of  Ninth  and  F  streets. 

Q.  How  long  have  you  been  living  at  the  Herndon  House  ? 

A.  For  ten  years,  there  in  the  house. 

Q.  What  is  your  husband's  name  ? 

A.  Patrick  Jones  Murray. 

Q.  Is  he  proprietor  of  the  Hemdon  House  ? 

A.  He  was  at  that  time,  but  he  sold  out  long  ago ;  he  is  not  now. 

Q.  What  period  do  you  refer  to  when  you  say  "  at  that  time  ?  " 

A.  To  the  year  1865 ;  about  the  month  of  April  of  that  year. 

Q.  It  was  a  hotel  at  that  time  ? 

A.  Yes,  sir. 

Q.  Where  is  the  Hemdon  House  ? 

A.  At  the  southwest  corner  of  Ninth  and  F  streets,  opposite  the  Patent  Office. 

Q.  During  the  year  1865,  did  a  man  by  the  name  of  I^wis  Payne  or  •*  Wood" 
board  at  that  house  ? 

A.  There  was  a  man  who  stated  he  was  that  man  who  boarded  there.  I  tes- 
tified before  the  military  commission  at  the  arsenal  on  the  occasion  of  the  trial 
of  the  conspirators,  and  I  at  that  time  stated,  when  asked  about  themanPayne» 
that  to  the  best  of  my  knowledge  I  had  seen  his  (Payne's)  face  before,  and  that 
it  was  at  our  house  that  I  had  seen  it. 

Q.  How  long  did  he  remain  with  you  ? 

A.  From  Friday  till  that  day  two  weeks. 

Q.  Do  you  remember  what  month  ?  and  if  so,  what  day  of  the  month  it  w«» 
that  he  left  your  house  ? 

A.  I  declare  I  cannot  tell  now.  I  gave  the  statement  on  the  occasion  of  th« 
other  trial,  and  I  suppose  it  is  on  record.     I  think  it  was  on  Friday. 

Q.  Was  it  on  "  Good  Friday,"  the  day  of  the  President's  assassination  ? 

A.  I  know  he  was  two  weeks  at  our  house. 

Q.  What  month  was  it  ? 

A.  It  was  before  the  assassination  of  the  President. 

Q.  How  long  before  ? 

A.  Two  weeks  before.  He  left  our  house  on  Friday,  and  it  must  have  beed 
that  very  Friday.  It  is  on  record  there,  and  I  presume  you  can  ascertio 
from  that.     I  mean  the  day  of  the  assassination. 

Mr.  Merrick.  I  object,  your  honor,  to  the  witness  stating  condnsions  fio* 
premises  of  her  own,  and  desire  that  she  should  be  restricted  to  facta. 

The  Court.  She  can  state  the  fact  as  to  what  day  it  was,  and  then  give  fl^ 
iea0(m0  why  she  believes  it  or  knows  it  to  be  that  day.    The  witness  wiUfi^ 

066d* 


TRUL   OP  JOHN   H.    SURRATT.  247 

W'lTNBSS.  The  day  of  the  assassination  this  man  was  at  our  house.  We 
always  had  a  four  o'clock  dinner.  He  came  into  the  sitting-room,  or  the  place 
"where  persons  generally  came  in  to  pay  their  board,  and  said  that  he  wanted  to 
pay  his  bill ;  that  he  was  going  away  to  Baltimore.  He  paid  his  bill,  and  I 
ordered  dinner  for  him ;  or  rather,  called  the  man  and  told  him  to  have  his  din- 
ner sent  up  to  the  dining-room  earlier  than  usual.  It  was  then  three  o'clock. 
It  was  done,  and  that  was  the  last  I  saw  of  him. 

Q.  Do  you  know  what  room  he  occupied  in  your  house  ? 

A.  Yes,  sir,  I  do. 

Q.  State  it. 

A.  He  occupied  the  front  room  right  on  the  corner  of  Ninth  street ;  room 
called  "No.  6." 

Q.  What  story  ? 

A.  I  do  not  know,  hut  I  suppose  the  third  story.  The  parlor  is  on  the  second 
8tory,  and  it  was  the  room  over  that. 

Q.  Do  you  know  whether  any  one  came  to  your  house  in  company  with  him 
when  he  first  applied  for  board  ? 

A.  No  one  at  all.  It  was  to  me  he  applied.  I  was  coming  down  stairs  when 
lie  came  in  and  asked  me  for  a  room.     No  one  was  with  him  at  the  time. 

Q.  Did  you  know  Mrs.  Maiy  E.  Surratt  ? 

A.  No,  sir. 

Q.  Do  you  remember  of  her  coming  to  your  house  on  any  occasion  ? 

A«  No,  sir. 

Q.  Do  you  know  the  prisoner,  John  H.  Surratt  ? 

A.  No,  sir. 

Q.  Any  member  of  his  family  ? 

A.  No,  sir. 

William  H.  Bell,  servant — residence,  Washington — sworn  and  examined. 
,  By  the  District  Attorney: 

Q.  Whose  servant  are  you  ? 

A.  Secretary  Seward's. 

Q.  How  long  have  you  lived  with  Secretary  Seward  ? 

A.  Three  years. 

Q.  In  the  month  of  April,  1865,  were  you  living  there  ? 

A.  Yes,  sir. 

Q.  State  whether  you  remember  the  occurrence  at  Mr.  Seward's  house  on  the 
^^th  of  April,  on  the  evening  of  that  day. 

A.  I  do. 

Q.  Will  you  commence  at  the  beginning  and  state  what  you  saw  ? 

,  A.  On  the  14th  of  April,  1865,  I  was  in  the  house  of  Mr.  Seward,  at  the 

*^  of  the  assassination.     About  a  quarter  past  ten,  I  presume  it  was,  the  bell 

^^.    I  went  to  the  door.     A  tall  and  heavy-built  man  approached.     He 

J^emed  to  be  a  young  man,  so  far  as  I  could  judge.     He  said  he  wanted  to  see 

Jfr  Seward.     1  told  him  that  he  could  not.  see  him,  from  the  very  fact  that  Mr. 

P^ward  was  sick  in  bed,  and  the  orders  were  strict  not  to  allow  any  one  to  come 

1^.    He  said,  **  I  am  sent  here  by  Dr.  Verdi,  Mr.  Seward's  family  physician." 

^e  held  in  his  left  hand  a  little  package,  which  I  supposed  to  be  a  prescription. 

It  bad  a  prescription  paper  on  it.     He  said  he  wanted  to  see  Mr.  Seward.     I 

Jatcd  he  could  not  see  him.     He  says,  *'I  must  see  him;  I  am  sent  here  by 

l^r,  Verdi  to  let  him  know  how  to  take  this  medicine,  and  I  must  see  him."     I 

HjB,  "You  cannot  see  him  by  any  means  at  .all;  he  is  asleep  just  about  this 

time."     He  insisted  that  he  must  see  him.     I  spoke  rather  rough  to  him.    He 

Parted  to  go  up ;  and  having  spoken  rather  rough  to  him,  I  said  to  him  that  I 

tfped  he  would  excuse  me.     I  had  no  idea  then  that  he  was  an  assassin.     He 

rpoke  rather  politely  to  me,  and  said,  '*0h,  that's  all  right."     I  told  him  that  I 


248  TRIAL  OP  JOHN  H.  SURRATT. 

was  just  doing  my  duty.  Of  course  I  had  no  right  to  insult  him,  not  knowing 
who  he  was.  He  started  up  stairs,  and  I  went  on  ahead  of  him.  When  he  bri 
reached  the  third  story,  and  got  near  Mr.  Seward's  door,  Mr.  Frederick  Sewaxi 
came  out  of  his  room  and  spoke  to  him.  He  told  Mr.  Frederick  that  he  wanted 
to  see  his  father ;  that  he  had  been  sent  there  by  his  family  physician,  Dr.  Verdi, 
with  a  pi*e8cription.  Mr.  Seward  went  into  his  father's  room,  and  observing  thai 
he  was  asleep,  came  out  and  pulled  the  door  to  after  him,  and  told  this  man  thai 
he  could  not  see  his  father ;  that  he  was  asleep,  and  that  he  would  give  him  the 
prescription ;  he  would  attend  to  it.  The  man  said  that  would  not  do ;  and 
thereupon  a  discussion  arose  between  the  two  as  to  whether  he  should  be  ad- 
mitted or  not,  Mr.  Frederick  insistuig  that  he  should  not,  and  the  man  ioBistio^ 
that  he  would  see  hkn.  Finally,  he  commenced  talking  so  rougli,  that  I  ttid 
to  him,  **  Don't  speak  so  rough  to  that  gentleman  ;  that  is  3fr.  Seward's  8on,tho 
Assistant  Secretary."  I  had  been  standing  by  the  side  of  the  man  all  this  tine. 
He  was  very  polite  to  me,  and  said,  "  I  know  that ;  that  id  all  right."  After 
awhile  he  pretended  that  he  had  come  to  the  conclusion  to  leave  the  houae^  I 
suppose,  as  he  started  to  come  down  stairs.  I  got  in  front  of  him,  and  attemplel 
to  lead  him  down.  He  walked  very  heavy  going  up,  and  also  coming  down. 
He  had  on  new  boots  from  all  appearances,  from  the  noise  they  made.  I  tnniei 
round  to  him,  after  having  come  down  three  steps,  he  behind  me,  and  said  to 
him,  "Don't  walk  so  heavy,  please."  He  replied,  "I  know  that;  that  ia  aD 
right."  By  the  time  I  turned  round  to  make  another  move  to  come  downBtaiffif 
he  had  jumped  back,  and  had  Mr.  Frederick  by  the  collar  hitting  him  over  4e 
head.  What  he  struck  him  with  I  am  unable  to  say,  but  1  think  it  was  a  knifiB. 
I  then  came  down  stairs  immediately,  ran  to  the  door  and  gave  the  alarm.  I 
ran  down  as  far  as  General  Augur's  office. 

Q.  Where  was  that  ? 

A.  At  the  corner  of  Fifteen-and-a-half  street  and  Pennsylvania  avenue.  From 
the  noise  that  I  made  three  soldiers  ran  down  off  the  piazza ;  but  by  that  time 
he  had  run  out. 

Q.  You  have  stated  where  General  Augur's  headquarters  were ;  will  you  now 
st^ite  where  Mr.  Seward's  house  was  ? 

A.  Mr.  Seward's  house  is  right  in  the  centre  of  Fifteen-and-a-half  street,  be- 
tween  H  and  Pennsylvania  avenue. 

Q.  In  this  city  and  District? 

A.  Yes,  sir. 

Q.  Difcitrict  of  Columbia,  and  city  and  county  of  Washington  ? 

A.  Yes,  sir. 

Q.  On  what  square  does  it  front  ? 

A.  It  fronts  on  Madison  square,  west  side. 

Q.  What  eqnare  is  front  of  it  1 

A.  Lafayette  square. 

Q.  Is  there  any  sUitue  in  the  square? 

A.  Yes,  sir. 

Q.  What  is  that  ? 

A.  Jackson  statue. 

Mr.  pIKRR^:p()^T.  Now  proceed  with  your  nan*ative. 

A.  After  those  three  soldiers  came  down,  as  I  was  going  on  to  say,  the  assaM* 
ran  out  of  the  house  and  got  on  his  horse.  When  I  came  down  from  the  etai* 
I  did  not  observe  his  horse  at  all  in  front  of  the  door.  When  he  got  on  tt 
horse  these  three  soldiers  were  about  three  paces  behind  me.  I  hallooed,  "Theirt 
he  is,  getting  on  his  horse  now."  He  got  on  his  horse  and  started  off  towardB 
street,  1  behind  him,  and  also  these  three  soldiers.  He  kept  on  up  15J  streB 
to  I,  when  I  lost  sight  of  him.  Whether  he  went  out  Vermont  aveuue  c 
15th  street,  1  am  unable  to  say. 

Q.  When  did  you  next  see  the  man  ? 


TRIAL  OF  JOHN  H.  8URRATT.  249 

A.  To  the  best  of  my  recollection  it  was  the  17th  of  April,  at  General  Augur's 
kadqaarters. 

Q.  Who  was  he 

A,  He  gave  his  name  as  Lewis  Payne. 

Q.  He  was  the  one  who  was  tried  as  Lewis  Payne  ? 

A.  Yes,  sir ;  the  one  who  was  tried  and  convicted. 

Q.  I  do  not  remember  whether  you  picked  up  anything,  or  whether  it  was 
•ome  other  person  ? 

A  No,  sir ;  I  did  not. 

Q.  YoQ  neither  picked  up  a  hat  nor  a  pistol  ? 

A.  No,  sir ;  but  they  were  both  picked  up  in  the  house  next  morning. 

Q.  Did  you  see  them  ? 

A  Yea,  sir ;  Mr.*  Suuton,  the  Secretary  of  War,  showed  them  both  to  me. 

Q.  Yon  would  recognize  them  if  you  were  to  see  them  again. 

A  I  would  recognize  the  hat,  but  I  am  unable  to  say  whether  I  would  recog- 
iH«e  the  pistol  or  not. 

Q.  After  you  went  back,  did  you  go  into  Mr.  Seward*s  room  ? 

A  Aflter  I  came  back,  I  went  into  the  hall,  and  lirst  met  Colonel  Seward. 
He  had  a  wound  on  his  forehead  and  one  on  his  wrist,  and  was  standing  there  with 
ftpbtol  iD  his  h:md,  the  hall  at  the  time  being  crowded  with  people.  That  was 
not  over  two  minutes  after  the  assassin  had  left  the  house.  The  whole  occur- 
ence occupied  but  a  minute  or  so. 

No  cross-examination. 

Frederick  W.  Sbward,  Assistant  Secretary  of  State — residence,  Washing- 
toiH-?worn  and  examined. 

By  Mr  Pi  R  R  R  kpo n  t. 

Q«  Will  you  state,  if  you  please,  what  official  position  you  occupy  ? 

A  That  of  Assistant  Secretary  of  State. 

Q-  Were  you  such  in  April,  1865  ? 

A  Ye«,  sir. 

Q-  In  April,  1865,  where  did  you  reside  ? 

A  I  resided  with  the  Secretary  of  State,  at  Madison  Place,  where  I  do  at 
present. 

Q-  Opposite  what  square  ? 

A  Opposite  Lafayette  square. 

Q-  What  is  the  number  ? 

^«  I  think  there  is  no  number. 

\-  How  is  it  with  reference  to  the  square  ? 

j-  It  is  about  opposite  the  middle  of  the  end  of  the  square. 

X'  State  where  General  Augur's  headquarters  were  at  that  date. 

A  General  Augur's  headquarters  at  that  time  were  in  the  next  house, 
^  the  left-hand  side.  They  were  on  the  corner  of  the  avenue  and  Madison 
^«ce,or  15  J  street  as  it  is  sometimes  called. 

Q-  Close  by  ? 

jP'  The  next  house.     The  houses  do  not  adjoin,  but  they  stand  near  each 

.  X-  As  a  mere  technical  matter  I  will  ask  you  in  what  District  and  county  the 

^  In  the  city  of  Washington,  District  of  Columbia. 

x»  Did  you  know  Ford's  theatre,  the  place  where  the  President  was  shot  ? 

^  Yes,  sir. 

x»  On  what  street  was  it?  • 

^  I  am  not  sure  that  I  can  state  the  number  of  the  street. 

\*  Ton  have  been  at  the  theatre  ? 


250  TRIAL  OP  JOHN  H.  8URRATT. 

A.  Yes,  sir ;  I  know  its  locality,  but  I  cannot  state  what  street  it  is  on. 

Q.  Will  you  state  in  what  city,  district,  and  county,  the  theatre  where  the 
President  was  shot  and  killed  is  ? 

A.  In  the  same  district,  city,  and  county  that  I  have  previously  mentiooedi 

Q.  City  of  Washington  ? 

A.  Yes,  sir. 

Q.  State  where  you  were  on  the  night  of  the  14th  of  April,  1865. 

A.  I  suppose  you  have  reference  to  the  time  of  the  attempted  assassinatioik^ 

Air.  PiEHREPONT.  Yes,  sir. 

Witness,  resuming.  At  that  time  I  was  iu  my  own  room,  which  adjoins  th^^ 
of  my  father,  in  the  third  story  of  the  house. 

Q.  Will  you  please  explain  which  way  the  house  fronts  ?^ 

A.  The  house  fronts  towards  Georgetown. 

Q.  It  fronts  the  square  exactly  ? 

A.  Yes,  sir. 

Q.  State  the  position  of  your  father's  room  in  the  third  story  ? 

A.  His  was  the  front  room  in  the  third  story,  on  the  south  side. 

Q.  At  the  comer,  was  it  ? 

A.  Yes,  sir ;  the  left-hand  comer  as  you  front  the  square.  My  room  was  on 
the  other  side. 

Q.  Same  front? 

A.  Yes,  sir;  the  two  rooms  occupy  the  whole  width  of  the  house. 

Q.  What  was  your  father's  condition  then  ?     Describe  how  he  was  situated 
'that  night;  and  state  where  he  was. 

A.  He  had  been  badly  injured  by  a  fall  from  his  carriage  several  days  before. 
He  had  a  fractured  arm,  and  a  fractured  jaw,  and  some  apprehensions  were 
entertained  that  he  might  not  recover  from  his  injuries.  He  was  under  medicil 
treatment  at  the  time,  and  was  kept  as  quiet  as  possible  in  his  room. 

Q.  Will  you  state  his  condition  and  position  in  the  bed,  whether  he  waslyiagr 
or  whether  he  was  on  a  frame  work,  or  how  ? 

A.  He  was  usually  lying  in  a  recumbent  position,  but  generally  about  beli 
raised  by  one  of  those  frame  works  which  are  made  for  the  accommodation  of  the 
sick,  and  mostly  used  in  hospitals. 

Q.  What  was  his  physical  condition  on  tiiis  night  ? 

A.  He  had  been  very  restless  during  the  day,  and  it  had  been  difficult  to 
compose  him  to  sleep.  On  this  night  we  were  all  endeavoring  to  keep  him  tf 
quiet  as  possible,  iu  order  that  he  might  sleep. 

Q.  Which  arm  was  broken  1 

A.  The  right  arm. 

Q.  Do  you  know  on  which  side  of  the  bed  he  was  lying? 

A.  He  was  lying  on  the  side  towards  the  front  of  the  house. 

Q.  State  whether  that  was  the  right  side  of  the  bed. 

A.  It  was  the  right  side  of  the  bed  as  he  lay  in  it.  His  object  in  lying  there, 
as  we  understood  at  the  time,  was  to  prevent  his  broken  arm  from  coming  i» 
contact  with  the  bed.  He  lay  right  on  the  edge  of  the  bed,  and  his  arm  pro- 
jected over.  During  the  day  the  nurses  were  continually  watching  to  see  thit 
he  did  not  fall  from  the  bed,  as  he  insisted  on  lying  just  at  the  edge  in  order  tl 
ease  this  arm. 

Q.  State  who  the  nurses  were,  and  who  were  in  the  room  at  this  time. 

A.  My  sister  was  in  the  room.  The  nurse,  George  Robinson,  was  in  tke 
room  also,  when  I  left  it.  I  had,  as  I  have  before  stated,  stepped  into  my  owi 
room.  From  our  anxiety  to  keep  the  sick-room  quiet,  we  had  as  few  remaiaii 
there  as  possible. 

Q.  Your  sister  was  a  young  lady,  unmarried? 

A.  Yes,  sir. 

Q.  Is  she  living  7 


TRIAL   OP   JOHN   H.   8URRATT.  251 

A.  No,  sir;  she  is  dead. 
Q.  "Was  jour  mother  in  the  house  ? 

A.  Yes,  sir ;  she  was  iu  her  own  room,  I  think,  though  I  did  not  »Qe  her  at 
tLat  time.    Jler  room  was  a  back  room  on  the  same  floor.    It  was  on  the  same 
side  of  the  house  with  my  father's  room. 
Q.  "VVas  Mrs.  Seward,  your  wife,  in  the  house  ? 
A.  She  was,  and  was  in  my  room. 
Q.  State  whether  your  mother  died  afterwards  ? 
A  She  died  on  the  21  at  of  June  following. 

Mr.  Bradlev.  I  would  like  to  know  where  all  this  is  to  lead,  and  what  is  the 
object  of  it. 

Mr.  PiERREPONT.  My  object  is  to  show  the  reason  why  these  parties  are  not 
called  here — to  show  that  they  are  dead. 
Q.  Will  you  state  who  else  was  in  the  house  ? 

Mr.  Bradley.  I  presume  it  is  understood  that  all  this  examination  as  to  the 
acts  of  any  of  the  other  of  the  parties  named  in  the  indictment,  except  the  pris- 
oner, is  subject  to  our  exceptions  ? 
Mr.  PiERREPO.NT.  Certainly;  that  is  understood. 
Q.  Will  you  state  who  else  were  in  the  house  ? 

A.  My  brother,  Augustus  H.  Seward.  I  do  not  know  that  there  were  any 
other  persons  at  that  time,  except  the  nurses,  servants,  and  visitors,  who  were 
coming  and  going  during  the  evening. 

Q-  Will  you  state  fill  that  occurred  on  the  evening  in  question,  as  far  as  your 
memory  will  serve  you  ? 

A.  About  ten,  or  a  little  after  ten,  o'clock  that  evening,  I  heard  the  sound  of  . 
•ome  persons  coming  up  stairs.     1  stepped  into  the  hall  to  see  who  it  was.     At 
[     W6  head  of  the  stairs  I  met  a  man  wearing  a  hat  with  a  light  overcoat,  well 
wpwed  and  tall,  who  said  that  he  was  a  messenger  from  Dr.  Verdi.     He  either 
8Md  80  or  William  Bell  did.     I  cannot  now  recall  which.     William  Bell,  I 
^I  state  here,  came  up  with  him.     The  man  said  that  he  was  instructed  by 
we  doctor  to  deliver  some  medicine  to  my  father,  and  to  deliver  it  personally. 
A  cannot  recall  tbe  words  or  expressions  that  either  of  us  used,  but  the  sub- 
•tftnce  of  the  conversation  was   that  I  told  him  that  we  were  endeavoring  to 
Compose  my  father  to  sleep,  and  did  not,  therefore,  want  him  disturbed,  and 
^t  I  would  take  the  medicine  and  give  it  to  him.     To  that  he  replied  that  the 
Joctor's  orders  were  that  he  should  see  him  personally.     I  made  objections  and 
**c  insisted.     I  went  over  the  ground,  I  think,  several  times  with  him,  the  con- 
gelation lasting,  perhaps,  three  or  four  minutes.     He  made  the   impression 
^ponme  of  being  a  man  rather  dull  of  comprehension,  and  as  having  no  desire 
^tktr  than  to  obey  his  orders  literally.     Finally  I  said,  "  It  is  not  worth  while 
^  talk  any  longer  about  it ;  you  cannot  see  Mr.  Seward.     I  will  take  the 
Jttponaibility  of  refusing  to  let  you  see  him.     Go  back  and  tell  the  doctor  that 
*iefn8ed  to  let  you  see  him,  if  you  think  you  cannot  intrust  me  with  the  medi- 
^^    I  am  Mr.  Sew^d,  and  in  charge  here.     He  will  not  blame  you  if  you 
^  him  I  refused  to  let  you  see  him."     He  hesitated  a  moment,  and  then  said, 
**Very  well,  sir,  I  will  go,'*  or  words  to  that  effect.     He  turned  about,  and  as  I 
•^posed  proceeded  to  go  down'stau's.     He  stepped  down,  I  think,  one  or  two 
Jtew,  and  I  had  turned,  or  was  about  turning,  to  go  to  my  room,  when  a  noise 
Wind  me  occasioned  me  to  turn  and  look  back.     I  found  that  he  had  turned 
^k  and  was  springing  up  the  steps  with  a  pistol  in  his  hands.     The  next 
Anient  he  was  at  my  side,  with  the  pistol  at  my  head.    There  was  no  time  for 
^l»ouyhfc  or  reflection.     I  remember  only  thinking  at  the  moment  that  there  was 
^  additional  reason  why  he  should  not  go  in.     I  did  not  go  so  far  as  to  logically 
^Mke  out  what  his  object  was.     I  remember  noticing  the  bhape  of  the  pistol, 
>iueli  was  that  of  a  navy  revolver.    The  next  instant  I  heard  the  click  of 
tk  Iock«  and  then  remember  to  have  thought,  "  Well,  the  pistol  has  missed 


252  TRIAL  OP  JOHN  H.  SURBATT. 

fire."  Then  InBtinctively  I  raised  my  hands  to  take  hold  of  him.  A  stn 
ensued,  and  after  that  my  recollections  hecame  indistinct  and  blurred,  bt 
near  as  I  recall  I  felt  my  right-hand  pressing  against  the  wall — I  presnm 
save  myself  from  falling;  and  that  putting  my  lef